Andrews v. Smith

• Decision Date: 21 October 1879
• Court: Michigan Supreme Court
• Parties: CHARLES F. ANDREWS v. ANDREW J. SMITH.

3 N.W. 181

41 Mich. 683

CHARLES F. ANDREWS v. ANDREW J. SMITH.

Supreme Court of Michigan

October 21, 1879

In replevin, brought to recover certain goods levied upon by a constable, the plaintiff submitted to a nonsuit, and defendant elected to take judgment for the value of the property. Held, that it was incumbent on defendant to prove a valid judgment and execution, and it was not sufficient, to entitle him to recover the amount of the lien claimed by him to show only an execution regular on its face.

Error to Ingham.

Q.A Smith, for plaintiff in error.

E.D Lewis, for defendant in error.

MARSTON J.

Andrews brought an action of replevin, in justice court, to recover possession of certain property. Defendant claimed no right or interest in the property, except as a constable, and by virtue of a levy made thereon under an execution against the goods and chattels of Martin C. Graves.

On the return day of the writ the plaintiff submitted to a voluntary nonsuit, and judgment of nonsuit was thereupon rendered against him. Defendant thereupon elected to waive a return of the property and take judgment for the value thereof. The cause was adjourned by consent, and on the adjourned day the parties agreed that the value of the property was $100. Defendant was then sworn, and testified that he was a constable; that he had levied upon this property, by virtue of an execution against Graves, for the sum of $84.40 and $2.60 costs. No further or other evidence was offered by the defendant. The plaintiff was then called as a witness, and an offer was made to prove by him that when defendant levied upon the property the plaintiff was the owner of it, and that the execution debtor had no interest therein whatever. This was objected to, excluded, and judgment rendered in favor of the defendant for the full value of the property. On certiorari to the circuit court the amount of the judgment was reduced to the sum claimed in the execution.

The statute provides that when the defendant in an action of replevin recovers judgment by discontinuance or nonsuit, such judgment shall be that he have return of the property, unless he elect to waive such return. 2 C.L. � 6758. In case he elects to take judgment for the value, such value shall be assessed subject to the provisions of section 29 of this chapter, (� 6759.) By section 29, when either of the parties to an action of replevin, at the time of the...