Carpenter v. Stearns

• Decision Date: 29 October 1888
• Parties: SARAH F. CARPENTER, Appellant, v. DANIEL G. STEARNS and W. H. LIDDLE, Respondents.
• Court: Kansas Court of Appeals

32 Mo.App. 132

SARAH F. CARPENTER, Appellant, v. DANIEL G. STEARNS and W. H. LIDDLE, Respondents.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Johnson Circuit Court. --HON. CHARLES W. SLOAN, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Samuel P. Sparks, for the appellant.

(1) The respondents directed the levy of the writ of attachment and the levy of execution; the officer was but their agent in the transaction, and the possession of the officer in such cases was the possession of the respondents, and replevin can be maintained against them. The possession of the officer was per my et per tout. Allen v. Crary, 10 Wend. 349; Tripp v. Leland, 42 Vt. 488; Fonda v Vanhorne, 15 Wend. 633; Connah v. Hale, 23 Wend. 467; Boyce v. Brockway, 31 N.Y. 493; Larimer v. Wheeler, 1 Keyes 468; Collier v Beckley, 33 Ohio St. 531; 3 Abb. Prac. Dec. 42; 13 Hun 38; 24 Hun 92; 6 Barb. 81; 8 Barb. 214; 16 Barb. 312, 485; 37 How. Pr. 102; 2 Abb. [N. S.] 365; 15 Abb. [N. S.] 428; 2 Daly 405; 78 Ind. 452. (2) The court erred in excluding from the evidence the delivery bond, for by its execution and delivery, respondents were estopped to deny that they had the possession of these goods at the time of its execution. Hundley v. Filbert, 73 Mo. 34; Lyman v. Lyman, 11 Mass. 317; McMillan v. Dana, 18 Cal. 339; Drake on Attachments, secs. 339, 340, 341; Frost v. White, 14 La. An. 140; Shaw v. McCullough, 3 W.Va. 260; Sparks v. Shropshire, 4 Bush (Ky.) 550; Jones v. Peasley, 3 Iowa 52; Harrison v. Wilkins, 69 N.Y. 412; Dickerson v. Anderson, 9 Mo. 156; Cohen v. Braughton, 54 Ga. 596; Speake v. United States, 9 Cranch (U. S.) 28; Sullivan v. Pierce, 10 Ark. 500; Shonenbarger v. Lemert, 23 Kan. 55; Staples v. Fillmore, 43 Conn. 510; Rutledge v. Corbin, 10 Ohio St. 478; Hannesso v. Bonnell, 23 N.J. Law, 159; Bacon v. Daniels, 116 Mass. 174; Gray v. McLain, 17 Ill. 404; Daw v. Clark, 7 Mich. 310; 28 Mo.App. 233; Price v. Kennedy, 16 La.Ann. 73; Inman v. Strattan, 4 Bush 447; Roebuck v. Thornton, 19 Ga. 151; Mead v. Figh, 4 Ala. 279; Lucas v. Beebe, 88 Ill. 427; State v. Nicoll, 30 La. An. 628; Diossy v. Morgan, 74 N.Y. 11; Bunce v. Beck, 46 Mo. 327. (a ) The delivery bond was a substitute for the property so far as the respondents were concerned. Lungonbeel v. Lemert, 41 Ohio St.; S. C. 25 Am. Law Reg. 215. (b ) It was the duty of the respondents, on presentation of writ of replevin, to have notified the officer that they did not have possession of the property. Their conduct in holding out to him that they had, by executing delivery bond, estopped them to deny such possession. Bank v. Garrison, 2 Mo.App. 58; Justices v. Lancaster, 20 Mo.App. 559; Dewey v. Field, 4 Metcalf 381; Dressback v. Mennis, 45 Cal. 225; Anthony v, Bartholow, 69 Mo. 186; 46 Mo. 327; Bleven v. Freer, 10 Cal. 172; Gaff v. Harding, 66 Ill. 61; Bullard v. Hascall, 26 Mich. 132; Herman Estop., Res. Jud. 768. (c ) A party is estopped to deny the solemn recital in his bond. 2 Herman Estop. and Res. Jud. 767. (d ) If a party pretends he has the goods when the demand is made, and induces the plaintiff to sue him, he cannot defend on the ground that he did not have them. Hall v. White, 3 Car. & P. 136; Wells Replev. sec. 375. (3) It follows that the court erred in forcing appellant to a non-suit by its instructions based upon the theory that appellant had failed to prove that respondents were in the actual possession of the goods at the time of commencement of suit.

O. L. Houts, Orr & McLin, for the respondents.

(1) As a condition precedent and jurisdictional to the issuing of a writ of replevin, plaintiff must make affidavit among other things that the property is wrongfully detained by the defendant. R. S., secs. 2882, 2883. (2) Plaintiff is required to give bond that he will return the property to defendant, if return be adjudged. R. S., secs. 2884, 2885. (3) Order of delivery requires the constable to take the property from the possession of the defendant. R. S., sec. 2886. (4) It is a necessary and jurisdictional fact, and condition precedent to the issuing and sustaining the writ of replevin, that the possession of the property was in the defendants at the time of the issuing of the writ of replevin. Hickey v. Hinsdale, 12 Mich. 99; Richardson v. Reed, 4 Gray 441; Wells on Replevin, secs. 34, 134, 142, 143, 646; 3 Mo.App. 454; Gray v. Parker, 38 Mo. 160. (5) The possession of personal property by the constable under an execution in favor of defendants is not the possession of defendants, but is a proceeding partly in rem, and will not lie where it is unlawful to execute that part of the process under the precept. Property could not be taken from or returned to a party who did not have the possession. Richardson v. Reed, 4 Gray 441; Ladd v. North, 2 Mass. 516; 2 Greenleaf, sec. 560, and notes; 2 Leigh, N. P. 1223; Meary v. Head, 1 Mason 322; Hopkins v. Hopkins, 10 Johns. 373; Brockway v. Burnap, 12 Barb. 351; Wells on Replevin, secs. 142, 143, 646. (6) The court did not err in excluding the delivery bond in evidence to the jury. The recitals of the bond do not admit or assert the possession of the goods in respondents. The only obligation assumed by defendants in said bond was to deliver to plaintiff the property mentioned in the statement and the writ in this suit, if said delivery be adjudged, or in default of such delivery, to pay the assessed value of said property. (7) Appellant's evidence showed that respondents never did have possession of the goods replevied until after they purchased them from the constable at the constable sale, under the execution in his hands in favor of respondents, and against W. H. Carpenter, husband of appellant, which was long after the issuing and service of the writ in this action. As the writ was issued and served and the bond given on the third day of January, 1887, and the property came into possession of respondents, under said constable sale, for the first time, on the twenty-first day of January, 1887, the court did not err in giving the instruction at the instance of respondents. (8) The court did not err in overruling appellant's motion for a new trial, as it appears from the evidence of appellant, that the suit was instituted against the wrong party, that at the time of the institution of the suit, and long prior and subsequent thereto, the property in controversy was in the possession of one H. H. Still, and was not in possession of respondents.

RAMSAY J.

Plaintiff instituted this suit, in one of the justices' courts of Johnson county, against the defendants, in replevin for the possession of certain household furniture of the alleged value of $70.20. The statement and affidavit were in statutory form and on the day the writ was issued by the justice, the defendants executed and delivered to the constable executing said writ their delivery bond for the retention of said furniture, which delivery bond was in form prescribed by statute, and which, together with replevin writ, were properly returned by the constable.

Plaintiff recovered a judgment in the justice's court and defendants appealed to the circuit court. On trial anew in the circuit court plaintiff introduced evidence tending to show that the furniture in question was her separate property, she being a married woman, and that said property had been purchased with her separate money and means, and that plaintiff was, at the time of the institution of her suit, the owner of and entitled to the possession of it. Plaintiff offered to read in evidence the delivery bond executed by the defendants and the constable's return. The defendant objected to its introduction, on the ground that it was irrelevant, immaterial, and had no tendency to show that defendants ever were in possession of the property in suit, and the court sustained their objection.

The evidence of the constable was to the effect that the...