Burchett v. Purdy
| Decision Date | 08 September 1894 |
| Citation | 37 P. 1053,2 Okla. 391,1894 OK 44 |
| Parties | BURCHETT v. PURDY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The record shows that this action was brought against B. W Burchett in his individual capacity, and not as sheriff of Kingfisher county. The evidence disclosed the same state of facts. Held not a fatal variance between the pleadings and the proof.
2. The plaintiff cannot always certainly tell by what right one interfering with his possession claims to act, and the only safe way is to make the person interfering with his right of possession defendant, and let him plead his agency or official character as a defense, if he is not acting for himself.
3. When an officer levies an execution upon the property of one not named in the writ, a demand is not necessary by the owner before bringing replevin; or where an officer levies upon one person's property to pay the debt of another, or when the original taking was wrongful, and the officer was not in the proper discharge of his duty, or if the seizure on execution was illegal in any manner, or the property is found by the officer in the custody of a stranger to the writ, either actual or constructive, which is the same in law, no demand by the true owner is necessary.
4. The award of damages in the sum of $50 in this case is not excessive.
Error from probate court, Kingfisher county.
Action in replevin by M. S. Purdy against B. W. Burchett. Judgment for Purdy for return of property, and damages in the sum of $50. The facts are stated in the opinion. Defendant brings error. Affirmed.
Boynton & Smith, for plaintiff in error.
Noffsinger & Nagle and Kane & Jones, for defendant in error.
Complaint in this case was filed on the 15th day of April, 1893, by M S. Purdy against B. W. Burchett, in the probate court of Kingfisher county, alleging that he was the owner of, and entitled to the immediate possession of, certain articles of personal property, viz. a saloon outfit, set forth in an itemized statement thereto attached, and made a part of the complaint, as Exhibit A, of the aggregate value of $251.58 and that the defendant had possession thereof without right and unlawfully detained the same from the plaintiff, to his damage in the sum of $500. Plaintiff prayed judgment for the possession of the said property, and $500 damages for such unlawful taking and detention, and for all other proper relief. The usual replevin affidavit was subscribed and sworn to, and properly filed in the case. A writ thereupon issued, and the property was turned over to the plaintiff. The answer was a general denial. Upon the issues thus formed, a jury being waived, judgment was rendered for the plaintiff for the return of the property, and damages in the sum of $50. The defendant then filed a motion for a new trial, setting forth--First, that the judgment of the court was contrary to law, and not supported by sufficient evidence; second, that there was a material variance between the evidence and the allegations of the complaint, as denied by the answer, specifying that the evidence wholly failed to show that the said Burchett, in his individual capacity, took from the plaintiff, or detained, the property in controversy, or any part thereof, but that said property was taken and held by said Burchett as sheriff of Kingfisher county, territory of Oklahoma, under and by virtue of an execution in an action in attachment entitled Samuel Westheimer & Co. v. R. T. Lee et al.; and, third, that the damages were excessive, and the award thereof unlawful and contrary to the law and the evidence. The court overruled the motion, and rendered judgment thereon, as hereinbefore stated. A bill of exceptions was thereupon presented, allowed, signed, and filed; and the case comes to this court on appeal, under section 1566, p. 563, of the Statutes of 1893, by petition in error. Chandler v. Colcord, 1 Okl. 260, 32 P. 330.
The plaintiff in error assigns five grounds of error, but groups the first, second, third, fourth, and fifth assignments, and treats them as one, only relying principally upon two grounds in his brief.
In the first ground of error the plaintiff in error argues the question as to whether an action in replevin is maintainable against a person in his private and individual capacity, to recover personal property, levied upon under process of the court while acting in his official capacity, as sheriff. This being conceded, does it constitute a fatal variance between the pleadings and the proof? The second question presented is, was a demand necessary before the commencement of this action, under the law and the facts of the case? We think both these questions should be answered in the negative, and the authorities are practically uniform on both propositions, and fully support the negative response of the court to them.
We will dispose of the questions in their order. On the first evidence shows that prior to instituting this action the defendant below, B. W. Burchett, entered the place of business of plaintiff below, M. S. Purdy, and took therefrom, without authority of law, the goods and chattels in controversy in this action. The evidence all shows that the goods seized were the individual property of Purdy, but they were take n by plaintiff in error, over the protest of defendant in error, as the property of one R. T. Lee, under an execution issued against the property of the said Lee, and in which Purdy was in no wise interested. The record shows that this action was brought against B. W. Burchett in his individual capacity, and not as sheriff of Kingfisher county; and the evidence discloses, as above stated, that the levy was made under and by virtue of the execution against Lee. This is claimed by plaintiff in error as a fatal variance, and assigned as his first ground for reversal of the court below. We cannot assent to this doctrine. When a person wrongfully detains property, it is immaterial in what capacity he assumes to hold it. The person from whom property is wrongfully taken is not required, in law, to know, and cannot always ascertain, by what authority the person wrongfully taking it assumes to have acted. The important point is the wrongful taking or detention, and by whom detained, and not the capacity in which the person detaining the property is acting. It is clearly proper to bring an action in replevin against a defendant in his individual capacity, even when he intends to act in another capacity. If the defendant is acting as agent, sheriff, or otherwise, it is a matter in defense, to be pleaded and proved as any other fact. The plaintiff cannot always tell certainly by what right one...
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