Hove v. McHenry & Allison

Day, J.

The evidence shows without any conflict that the defendant, Womeldorf, never deprived the execution defendant of the actual possession of the property, and that the defendants did not have the property in their possession at the time of the commencement of this action. The defendant, Womeldorf, simply went to the farm of the execution defendant, and took a list of the property, and took a delivery bond from the execution defendant therefor. He did not take actual possession of the property. And so the jury have found in their special verdict. So far as any act of the defendants was concerned, there was nothing in the way of the plaintiff’s taking actual possession of the property from his mortgagor.

The action of replevin is an action for the recovery of specific personal property. The petition must state the facts constituting the alleged cause of detention, according to the best belief of the plaintiff. Code, § 3225. The action will not lie in favor of one who is already in possession of the property in controversy, nor can it be successfully maintained against one who does not detain the possession of the property. The petition in this case alleges that the defendants wrongfully took possession of the property, and that they refused to deliver the same to the plaintiff These allegations are put in issue, and they are material. And yet, notwithstanding the fact that there is an entire failure of proof of these allegations, and the evidence shows without any conflict that the defendants never did have the property in their possession, the plaintiff has a judgment against the defendants for costs. "When the jury found specially that the property never was taken into the possession of the defendant, Womeldorf, that was an end of the plaintiff’s case as to these defendants. The court should have sustained the defendant’s motion for a judgment for costs. The defendant complains of the neglect of the court to submit the cause to the jury for a general verdict, and the refusal of the court to give certain instructions asked. These actions of the court, in view of the special verdict, become immaterial. The defendants are entitled to a judgment for costs upon the special verdict.

Reversed.