Campbell v. Case

• Decision Date: 31 January 1872
• Citation: 46 N.W. 504,1 Dak. 17
• Parties: Campbell v. Case.
• Court: South Dakota Supreme Court

46 N.W. 504

1 Dak. 17

Campbell

v.Case.¹

Supreme Court of the Territory of Dakota.

Jan. Term, 1872.

Appeal from district court, Yankton county.Bartlett Tripp, for appellant. Moody & Hand, for appellee.

KIDDER, J.

This action was tried by the court, the parties having waived a trial by jury. The case shows that the plaintiff, on the 26th day of June, 1871, was the owner of 14 oxen; that on said day, one Flick, a deputy-sheriff of Yankton county, took possession of said oxen under a warrant of attachment in a suit of Bramble & Miner against this plaintiff. Flick subsequently resigned his said office, and ceased to act as deputy-sheriff, and, previous to the commencement of this action, turned over the oxen to this defendant, who was also a deputy-sheriff of the same county. On the 27th day of July the plaintiff commenced these proceedings, called “replevin,” to recover the possession of said oxen, and thereon took them out of the possession of the defendant. At a special term of the court, holden on the 4th day of September, the defendant moved to set aside the affidavit of the plaintiff and the requisition thereon, which motion the court sustained, and set aside all the proceedings, but with leave to the plaintiff to file an amended undertaking and affidavit within eight days. After this, we find nothing in the record in relation to the proceedings; i. e., the affidavit, undertaking, or any preliminary paper in the case. This judgment of the court concluded the proceedings, and ended the case, so far as a general judgment is concerned, unless the papers were amended, as they were permitted to have been done by the court. 2 U. S. Dig. 174, § 418; Foster v. Atkison, 1 Litt. (Ky.) 214; 8 U. S. Dig. 182, § 176; Clements v. Elliott, 11 Ala. 360. But, as the case went to a hearing on the merits, without objection, so far as the record shows, we have concluded to examine its merits on another question.

The court, among other facts, found that the officer Flick, who made the attachment, “did not in the presence of two residents of the county, or in the presence of any person, attach said property, nor did he make any appraisement of said property, nor any inventory of the same as specially required by statute, that said oxen were all the oxen that said Campbell owned or possessed; that said oxen were turned out to the defendant in this action, a deputy-sheriff of Yankton county, about twelve days before this action was commenced, and that the plaintiff has received damages to the amount of seventy-five dollars for the detention of said oxen.” And his conclusions of law were that “one yoke of said oxen were exempt from attachment under the exemption law; that the seizure of said property by said Flick,” etc., “as shown by his return of the warrant in the case of Bramble & Miner v. C. T. Campbell,” (plaintiff) “was in violation of law, and wholly void; that the plaintiff is entitled to the possession of the oxen described in the complaint, and seventy-five dollars, his damages, for the unlawful detention of the same;” and judgment was rendered accordingly. It appears from the foregoing facts and conclusions, that the opinion of the court was predicated upon the fact that the statute of 1862, of this territory, was not repealed by that of 1867-68; consequently, the officer, in making the attachment, not acting pursuant thereto, was a trespasser ab initio, and his proceedings thereon were void.

Whether the statute of 1862 in this regard is repealed is a question of great practical utility in our territory, and therefore we have examined this question with as much care as the subject merits. “Whether a new law, by implication, supersedes an old one upon the same subject cannot well be determined, in most cases, by any merely a priori rules of argument or construction, but must depend very much upon the peculiar circumstances of each case,-the old and the new law,-the mischief and the remedy.” But it is sound law, we think, and no authorities can be found that will controvert it, that a subsequentstatute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, must operate to repeal the former, although it contains no words to that effect. Giddings v. Cox, 31 Vt. 607;Mason v. Waite, 1 Pick. 452;Bartlet v. King, 12 Mass. 537, 545, and cases there cited; Goddard v. Boston, 20 Pick. 407, 410, and cases there cited. These authorities and many others we might cite are in point on the question of repeal by implication. In the case at bar, it will be entirely unnecessary to refer to such cases, for the...