Ames v. The Mississippi Boom Company

• Decision Date: 01 January 1863
• Citation: 8 Minn. 417
• Parties: OLIVER AMES vs. THE MISSISSIPPI BOOM COMPANY.
• Court: Minnesota Supreme Court

8 Minn. 417

OLIVER AMESvs.

THE MISSISSIPPI BOOM COMPANY.

Supreme Court of Minnesota.

Appeal from order of district court, Ramsey County.

Points and authorities for appellant: —

1. The plaintiff has mistaken his remedy. Replevin will not lie where the title to the chattel can only be shown by proving the title to the land from which it was severed. Otherwise, where the plaintiff is in the actual possession of the land, as possession will be sufficient to enable him to maintain the action. Morris on Replevin, 57, and cases there cited; 8 Cow. 220; 2 Watts, 126-7.

2. An action for the recovery of specific personal property is a proceeding in rem, and proof of identity of the particular property claimed is just as essential to the maintenance of the action as proof of the right of property or of the right of possession. The plaintiff, therefore, having failed to identify the property claimed in this action, cannot recover, and the judgment must be reversed, and judgment for the defendant. Morris on Replevin, 53, and cases there cited; 4 Bouvier Inst. §§ 3553-8; Comp. Stat. 548-9; also 566, § 70; 2 Rawle, 427; 13 Ill. 192; 30 Me. 370; 5 U. S. Dig. 299, § 286; 1 Mann (Mich.) 92; 1 Duer, 101; 10 U. S. Dig. 407, § 2; 11 U. S. Dig. 403, § 2.

3. That in the action of replevin the issue is upon the property seized by the officer executing the writ, and the plaintiff must stand or fall by that issue, and if he fails to show his right to the possession of the property so seized, judgment must go for the defendant. 1 Phil. Ev. 211; 18 Penn. St. 91; 7 Ohio, 127.

4. Although the rule of caveat emptor generally obtains in this country upon a sale of personal property, yet that rule is no longer applicable where the legislature has established a registry for any particular species of chattels. If, independent of the registry, a party has possession of a chattel, and of those indicia which imply a right to sell, then a sale by such person would bind the real owner. Here all the indicia showed title in Wood, at the time of the sale to Berthold, Rozier & Co., and they must either be protected in their purchase, or the rules of law and the provisions of the statute be nullified. Morris on Replevin, 49, and cases there cited.

Brisbin & Warner, for appellant.

D. Cooper, for respondent.

ATWATER, J.

This was an action of replevin, to recover 600,000 feet of pine saw logs, of which plaintiff claimed to be owner, and entitled to the immediate possession. The defendant denied the material allegations of the complaint, and set up title to the logs in a third party, and claimed right of possession by virtue of a lien on the same for boomage. The cause was referred to W. Wilkin, Esq., who reported that the plaintiff was entitled to judgment for 126,622 feet of the logs claimed, or the value thereof, assessed at $506 48-100. Upon the coming in of the report, the defendant made a motion for judgment in favor of the defendant, on the report and case made, the order for judgment in the report to the contrary notwithstanding. The motion was denied, and from the order entered thereon, the defendant appeals to this court.

The plaintiff urges the objection, that the motion for judgment in favor of the defendant, notwithstanding the order for judgment for plaintiff, was irregular and improper, and that the defendant could only appeal from the judgment entered upon the order. This view would seem to indicate the correct practice in cases of this kind. Sec. 54, Comp. Stat. 564, provides that the report of the referees upon the whole issue, stands as the decision of the court, and judgment may be entered thereon, in the same manner as if action had been tried by the court; and their decision may be reviewed in like manner." Upon referring to the proceedings in a trial by the court, sec. 41, p. 562, Comp. Stat., provides that "in giving the decision, the facts found and the conclusions of law must be separately stated; judgment upon the decision must be entered accordingly." In the case of trials before a jury, provision has been made for a stay of entry of judgment upon the verdict, for the purpose of moving for a new trial, for judgment, notwithstanding the verdict, etc.; but we find no provision for stay of entry of judgment when the case has been tried by the court or referees. On the contrary, it is declared, "that upon the decision judgment must be entered accordingly." The correct practice in such case is to perfect the judgment of record, when either party may appeal from the same. We think, however, under the stipulations accompanying the papers, the respondent is not in a position to urge this objection. It seems that the case was settled by stipulation, and the motion below was made on the report of the referee and case made. There is also a stipulation in regard to the appeal to this court, waiving the performance of certain things required by statute, and, also, "hereby expressly waiving any and all irregularities in the mode and manner of taking said appeal, and making return thereof to the supreme court." We think this stipulation broad enough to cover the error complained of by respondent. It is an irregularity of form, rather than an error of substance, and it does not appear that any prejudice is suffered by the respondent in allowing an appeal from an order for judgment, instead of from the judgment itself as perfected of record. The questions of law to be reviewed are the same, in whatever manner the appeal comes up, and under the stipulation we do not feel justified in dismissing the appeal, as we think the fair inference from the stipulation is, that the parties intended to submit the case to this court for the purpose of reviewing the errors alleged to have been committed by the referee.

The plaintiff offered evidence showing, or tending to show, that he purchased the logs in question in 1858, of Heubner & Longaker, upon whose lands these logs were cut without the permission or consent of the owners, by Smith & Sands, in the winter of 1858. These parties also cut logs on lands belonging to other parties than those above named, in the same vicinity. Smith & Sands used two different marks for the logs cut by them that winter, called "diamond girdle diamond," and "S. girdle H." These logs were drawn and landed on Stanchfield brook, a tributary of Rum River. The referee has found that 488, 111 feet board measure of logs bearing these marks, and cut by said parties, came into the boom of the defendant, and that 138,872 feet of these logs were cut on lands owned by Heubner & Longaker, and that "they were mixed by the parties cutting them with the other logs cut by them in said town thirty-seven (37), and having the same marks, and being of the same value per thousand feet, in such a way as to be undistinguishable from said last mentioned logs." No evidence was offered by the plaintiff for the purpose of identifying the logs claimed by him under his purchase from Heubner & Longaker, nor was any attempt made to distinguish them from other logs in the possession of the defendant, bearing the same marks, to which the plaintiff laid no claim.

Upon this state of facts, the defendant urges that the plaintiff cannot recover in this action. We think the objection well taken. The action under the code for the "Claim and Delivery of Personal Property," is, in substance and effect, the former action of replevin. That was an action in rem, and by the common law the judgment was pro retorno habendo, and it is only by statute that a personal judgment can be given in this action. Formerly, the only or chief object of the action was to controvert the legality of a distress. Its scope has been enlarged by later legislation, but the nature of the action is substantially unchanged, and the fundamental principles formerly applicable to the action, and the essential requisites to sustain it must still be recognized. The action of replevin sought the specific goods, and was fruitless unless the goods were seized, or other goods taken from the defendant by capias in withernam, as a substitute for those distrained, on the distrainor having eloigned the latter beyond the reach of the sheriff. This provision for seizing other property in lieu of that originally taken by the defendant, has not been retained in the action provided for under the code, but a substitute therefor seems to have been adopted by sub. 3, § 95, Comp. Stat. 545, which provides for an arrest "in an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff." 5 How. Pr. R. 152; 3 Sandf. 707.

Identification of the property seems always to have been regarded as an essential requisite to the maintenance of this action, that is, that the plaintiff must show the specific property in the hands of the...