Bailey v. Swain

• Citation: 45 Ohio St. 657,16 N.E. 370
• Parties: BAILEY v. SWAIN.
• Decision Date: 27 March 1888
• Court: Ohio Supreme Court

16 N.E. 370

45 Ohio St. 657

BAILEY v. SWAIN.

Supreme Court of Ohio.

March 27, 1888

Error to circuit court, Paulding county.

The original action was in replevin. The plaintiff alleged in the usual form that he was the owner, and entitled to the immediate possession, of the chattels described in the petition, and that the defendant unlawfully detained them from his possession, to his damage. An order was issued, bond given, property taken and delivered to the plaintiff. In his answer the defendant denied all the allegations contained in the petition. Upon the issue thus joined the case proceeded to trial to a jury. The plaintiff gave evidence tending to prove the averments of his petition, and rested. Thereupon the defendant was permitted to offer evidence tending to prove that, as constable, he seized and detained the goods in question by virtue of an order of attachment issued by a justice of the peace at the suit of one Peter Kemler, and against one Moses Rodgers; the amount of the judgment recovered in that action; previous ownership and possession of the property by Rodgers; and a fraudulent transfer of it from Rodgers to Bailey, the plaintiff. This evidence was received, over the objection of the plaintiff, to which he excepted. The ground of the objection and exception is that all this was new matter, and not admissible under the general issue, and not without a plea of such new matter, and prayer for affirmative relief. Under the instructions of the court the jury found for the defendant, and assessed his damages at $232.32, for which judgment was rendered, with costs, for the defendant. This judgment was affirmed in the circuit court and it is to reverse this judgment that the present proceeding is prosecuted. Numerous exceptions were taken during the trial, but, so far as they are involved in the single question upon which the case is reported, they depend upon the admissibility of the evidence offered by the defendant, as before indicated.

Syllabus by the Court

Where the plaintiff in an action of replevin alleges his ownership of the goods in question, his right to the immediate possession of them, and their unlawful detention by the defendant, the latter may, under a general denial, prove that, as an officer, he levied upon the goods at the suit of a creditor of one from whom the plaintiff obtained them, and that the transfer to the latter was fraudulent and void as against creditors.

W. J. Beers and Mann & Shuster , for plaintiff in error.

Thomas Emery and Thomas B. Holland , for defendant in error.

OWEN C. J., (after stating the facts as above .)

The plaintiff alleged in his petition his ownership, his right to the immediate possession, and the unlawful detention by the defendant, of the goods in question. If he was able to make these facts appear, he was entitled to a verdict, no matter what facts outside of or beyond these the proofs disclosed. It is impossible to conceive of a state of facts or condition of circumstances which would have entitled the defendant to a verdict if the statements in the petition were true; that is, if the plaintiff owned the goods, if he was entitled to the immediate possession of them, and the defendant unlawfully detained them from his possession, a lawful verdict for the defendant would have been an impossibility. The defendant denied, and thereby put the plaintiff upon his proof of, all these averments. Proof that the defendant was the owner of the goods was, at the same time, proof that the plaintiff was not. Proof that the defendant was, at the commencement of the action, entitled to the possession of the goods, was also proof that the plaintiff was not. Proof that the defendant legally and rightfully held the goods in his possession also established that he did not unlawfully detain them from the possession of the plaintiff. All this proof was directly and clearly responsive to the issue joined, and was not in the slightest degree in the nature of ‘ new matter constituting defense, counter-claim, or set-off.’ The result was simply that the plaintiff failed to prove the facts stated in his petition, and which were indispensable to his recovery. Proof that the attachment plaintiff was a creditor of the vendor or assignor of Bailey, and that, as against himself, the former obtained no valid title to the goods by reason of fraud in the sale, was directly responsive to the issue. It is no answer to this to say that the plaintiff's title, even if fraudulently acquired, was good between the parties to the transfer, and as against all the world except creditors; for, while this is true, the issue was joined with a creditor. The plaintiff voluntarily challenged an inquiry into the right of a creditor to seize the goods in satisfaction of his debt against the plaintiff's fraudulent assignor. Even if the relation of creditor had been absent from the controversy, the rule of pleading would not have been changed; for in that case proof of the fraudulent transfer would have been entirely irrelevant, and no form of pleading could have rendered it admissible. While no rule of pleading, peculiar to replevin proceedings, is expressly prescribed by the statute, it seems quite clear from their provisions that they contemplate that the trial shall proceed in any case upon an issue substantially in the form adopted in the case at bar. Section 5826 provides that ‘ when the property is delivered to the plaintiff, * * * if the jury, upon issue joined, find for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit; and, if they find either in his favor, they shall assess to him such damage as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant.’ This provision requires the jury, after finding upon the issue joined for the defendant, to proceed to find if the right by which he detained the property was a proprietary, or simply a possessory, right, and in either case to assess to him such damages as they think right and proper. This provision was abundant notice to the plaintiff that if the property should be delivered to him, and he should fail to establish a right of possession superior to that of the defendant, the jury would be called upon, in that action, to ascertain the defendant's interest in the property, with a view to an assessment of his damages.

We are not left without the light of adjudication to aid us in solving the question at bar. Section 7 of an act passed in 1831 (Swan's Rev. St. 786) provided ‘ that in all cases, upon issue joined, where the jury shall find for the defendant, they shall also find whether the defendant had the right of property in the goods...