Cash v. Quenichett

• Decision Date: 30 April 1871
• Citation: 52 Tenn. 737
• Parties: Joseph H. Cash v. John Quenichett et al.
• Court: Tennessee Supreme Court

52 Tenn. 737

Joseph H. Cash

v.John Quenichett et al.

Supreme Court of Tennessee.

April Term, 1871.

FROM SHELBY.

Appeal in error from Second Circuit Court of Shelby County. IRVING HALSEY, J.

GANTT & MCDOWELL for Plaintiffs in Error.

H. CLAY KING for Defendant.

SNEED, J., delivered the opinion of the Court.

The statute regulating the remedy by action of replevin was intended to give to the owner of a chattel who was wrongfully deprived of its possession a quick and convenient method of regaining the possession, and at once trying the question of title. And on the other hand it was intended to provide a perfect protection to the citizen against the great abuses incident to a remedy so summary in its nature, by which property in the possession of one party is taken and delivered to another before the question of title is adjudicated. After the return of the writ, if it appear that the bond is not sufficient in form, amount of penalty, or in respect to the solvency of the sureties, the Court may remedy the defect by such orders as are necessary, and may hold the plaintiff in custody till said orders are complied with; and the Court may make such other orders as may be considered expedient to secure the rights of the plaintiff or defendant: Code, s. 3392. The moment the Court acquires jurisdiction of the case, the parties become answerable to these orders and penalties. If the plaintiff part with the property before his right to it is determined, he does so at his peril; and if the bond be worthless and the proceeding to obtain the property be in fraud of the law, the plaintiff may be committed until he comply with the order of the Court in renewal of the bond, and may be compelled to perform such other orders of the Court as may be necessary to secure the rights of the defendant. Any other view would render the action of replevin under our laws and instrument of injustice and oppression, rather than the just and serviceable remedy intended. It will be observed that this case does not involve the question of contempt committed in presence of the Court, and to which the law has limited the power of imprisonment to ten days. But to what extent and under what restrictions does the law vest the Court with the power of imprisonment in this kind of case? It could not have been intended to clothe the Courts with the powers of a despot and to authorize a perpetual or indefinite imprisonment in such cases. But yet the literal import of the statute is so. The words are, that the Court “may hold the plaintiff in custody until said orders are complied with.” We are aware of the delicacy of this question, or of any other growing out of the power of a Court to punish for contempts. But we are necessarily compelled, in settling the rights of these parties, to construe this statute and to define the powers of the Court under it. The plaintiff in this case had given the usual bond in double the estimated value of the property upon suing out the writ of replevin. The suit was begun in January, 1868. It is stated that the bond was then good, but that plaintiff and his surety both became insolvent afterward and prior to the September Term, 1870, when a rule was made upon the plaintiff to make a new bond. The plaintiff being solvent at the time the action was begun, ventured to sell the property because it was expensive to keep. Upon his failure to comply with the rule, a judgment is rendered for the defendants and a rule is made on the plaintiff to surrender the property to the defendants. In responding to this rule he alleges the sale of the property, the appropriation of the proceeds and his own insolvency. The Court thereupon makes an order upon him to pay...