Stoeckel v. Russell

The Court, Houston, J.,

charged the jury that as there was no question of fact involved in the case, and the only question to be considered and determined, and on which the case solely depended, was a question of law purely, it would be sufficient for the court to instruct them that whatever right or title the plaintiff in this action, George Stoeekel, acquired to the horse in question under the judgment recovered by him against Robert Russell, one of the defendants, before a justice of the county, and the execution and sale thereon of it to him, the record of which was in evidence before them, was afterwards divested in law by the reversal of that judgment in this court on certiorari process, and as Stoeekel, who was the plaintiff in the judgment, became the purchaser of the horse at the sale on the execution, Russell, the defendant in the judgment, was entitled in law to the restitution of the horse to him by Stoeekel on the reversal of it in this court, and the legal right to the ownership and possession of the horse having been from that time revested in Russell, one of the defendants in this action of replevin brought by Stoeekel against them to recover the possession of it, we must say to you that such being the facts in the case, he cannot maintain the action, and that your verdict must consequently be for the defendants. As, however, the property was not replevied on the writ, but retained in possession of the defendants on giving bond with security as required by law, the damages should be nominal only.

Verdict accordingly.