Adams v. Burns

In the opinion heretofore rendered in this case, it is stated that "A stranger may not recover, by an action of replevin or detinue, property that has been wrongfully levied upon." This general rule has been changed, in certain respects, by statute in some of the States, including our own, as regards the action ofreplevin, as has been called to our attention in the petition for rehearing. Thus Section 5283 C.G.L. provides that, "If anyattachment shall be levied upon property claimed by any person other than the defendant in attachment, such person may, at his option, replevy the same, or interpose a claim in the manner provided in case of execution." (Italics supplied.) And Paragraph 2 of Section 5330 C.G.L. provides that: "Nor shall replevin lie at the suit of the defendant in any execution or attachment to recover goods and chattels seized by virtue thereof unless such goods and chattels are exempted by law from such execution or attachment." But nothing is said in either of these statutes about detinue, and it is detinue we are here dealing with, detinue to recover property levied upon in distress proceedings. In such latter proceedings, Section 5429 C.G.L. provides a remedy in these words: "Any person claiming any property so distrained may interpose and prosecute his claim for it in the same manner as provided in similar cases of claim to property levied on under execution." But, with us, there are no statutory modifications of the action of detinue, which remains as it was at common law.

As shown by the authorities cited in our opinion in this case, in detinue the plaintiff must have the right to immediate possession of the property at the time the action is begun, and the defendant must have been in the wrongful possession of the property at that time, or some time prior thereto. Though sued as an individual, it appears that Adams in his individual capacity had never been in possession of the property sued for in this detinue action. After the levy, the Sheriff left the property in the custody of the corporation of which Adams was president. Whatever possession the corporation, or its president for it, exercised was as bailee of the sheriff. The corporation's possession, or its president's possession, was the possession of the sheriff. The sheriff's bailee was no more liable in detinue than the sheriff himself, and it is well settled that the sheriff was not liable. The property had been levied on under a writ valid on its face, and was in custodia legis. The sheriff's bailee is not liable in detinue to anyone except his bailor. Kyle v. Swem, 99 Ala. 573, 12 So. 410. Where a person is sued individually in detinue, he may defend by showing that he holds the goods as trustee in bankruptcy under the order of the Federal Court. Turrentine v. Blackwood, 125 Ala. 436, 28 So. 95, 82 A.S.R. 254.

But it is contended on behalf of the defendant in error that these principles are obviated or made inapplicable here, because in detinue there is no seizure of the property when the action is filed, but only after judgment, and if the property cannot then be had, the defendant can satisfy the judgment by paying the value of the property, and the damages for its detention, as fixed by the verdict and judgment. This, however, does not change the requirements of the common law to the effect that the cause of action must exist when the action is instituted. If the plaintiff in detinue is not entitled to immediate possession, or if the defendant is not or has not been in wrongful possession, of the property, when the action is begun, the plaintiff cannot lawfully bring the action; and in the absence of either of these elements, he cannot bring suit, despite this lack, and speculate on the possibility or the probability of these essential elements of the cause of action coming into existence before the case comes on for trial. The true rule, of course, is that all the essentials of the cause of action must exist in full force at the time the suit is instituted. The primary object of detinue is to recover the thing itself, and ordinarily the defendant must have actual possession of the personal property, or controlling power over it, at the time suit is brought; otherwise the plaintiff cannot succeed in his suit. 9 R.C.L. 151. Thus it appears that, aside from the question of conflict between courts, the plaintiff in the detinue suit in the court below was not entitled to recover.

Obviously the holding in the case of Oakes v. Lake,290 U.S. 59, 78 L. Ed. 168, cited by defendant in error, was not intended to work any change in the rules governing the common law action of detinue. Nor does it necessarily mean that the court would have reached the same conclusion if the action there involved had been an action of detinue. The action there under review was brought under the Idaho "claim and delivery" statute. It was held in that case that the question whether an action will lie in a Federal Court against a sheriff to take from the possession of the State Court property held by him under a writ of attachment, was not involved in an action under the statute referred to, wherein the plaintiff prayed that he be adjudged entitled to immediate possession of the property or in lieu thereof he recover the specified value of the same, the statute authorizing a judgment for the value where delivery could not be had; that in such a case the Federal Court could dispose of the case as one to recover the value of the property and damages, if the parties unite in the view that delivery cannot be had upon the theory that it would amount to an unwarranted interference with the possession of the State Court. The opinion shows that the court did not intend to overrule any of its previous decisions, a number of which were cited in support of the principles announced in our original opinion. In one of the cases cited, Lammon v. Feusier, the Federal Court said:

"When a marshal, upon a writ of attachment on mesne process, takes property of a person not named in the writ, the property is in his official custody, and under the control of the court whose officer he is, and whose writ he is executing; and, according to the decisions of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ issued. Freeman v. Howe, 24 How. 450 (65 U.S. XVI 749); Krippendorf v. Hyde (ante, 145). The principle upon which those decisions are founded is, as declared by Mr. Justice MILLER in Buck v. Colbath, above cited, `That whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court and under its control for the time being; and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises.' 3 Wall., 341 (70 U.S. XVIII, 260. Because the law had been so settled by this court, the plaintiff in this case failed to maintain replevin in the courts of the State of Nevada against the marshal, for the very taking which is the ground of the present action. Feusier v. Lammon, 6 Nev. 209."

In Buck v. Colbath, cited in our previous opinion, it was held that an action of trespass for damages might be brought against the officer for wrongfully taking the property of a third party under a writ of attachment, without violating this principle. In that case the Federal Supreme Court said:

"This principle, however, has its limitations; or rather its just definition is to be attended to. It is only while the property is in possession of the court, either actually or constructively, that the court is bound, or professes to protect that possession from the process of other courts. Whenever thelitigation is ended, or the possession of the officer or court isdischarged, other courts are at liberty to deal with it according to the rights of the parties before them, whether those rights require them to take possession of the property or not. The effect to be given in such cases to the adjudications of the court first possessed of the property depends upon principles familiar to the law; but no contest arises about the mere possession, and no conflict but such as may be decided without unseemly and discreditable collisions.'' (Italics supplied.)

We see no reason therefore to recede from the position taken in our previous opinion, which, while we cited only a few cases, is supported by the great weight of authority. However, the language of the quoted sentence of our former opinion is modified as shown by the first paragraph of this opinion. Petition for rehearing denied.

WHITFIELD, C.J., and Davis, J., concur.

ELLIS, P.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment.