Cherry v. Dillard

• Decision Date: 03 December 1917
• Docket Number: 25
• Citation: 199 S.W. 83,131 Ark. 245
• Parties: CHERRY v. DILLARD
• Court: Arkansas Supreme Court

199 S.W. 83

131 Ark. 245

CHERRY v. DILLARD

No. 25

Supreme Court of Arkansas

December 3, 1917

Appeal from Marion Circuit Court; John I. Worthington, Judge reversed.

Judgment reversed and cause dismissed.

Allyn Smith, for appellant; G. W. Rogers, of counsel.

1. The property was in custodia legis under a writ valid on its face, and replevin would not lie. No one except the mortgagee, where the property is mortgaged, can replevy. The creditor is not liable where he did not direct the levy. 42 Ark. 236; 58 Id. 354; 41 Id. 295; 94 Id. 216; 126 S.W. 842; Kirby's Digest, § 6854, subd. 5; 57 Ark. 195; 127 S.W. 467; 94 Ark. 384; Kirby & Castle's Digest, § 8426; 23 Tex. 269; 2 Greenl Ev. (8 Ed.), § 560; 4 Gray 441.

2. The execution was not levied by direction of the creditor and he is not liable. 7 J. J. Marsh 646; Ib. 263; 3 Ill.App. 635; 51 Vt. 183; 23 Ark. 101; 62 Id. 135.

3. Sinor and Stewart did not appeal.

J. H Black and Williams & Seawell, for appellee.

1. A verdict was properly instructed for appellee. The remedy was not by replevin, but by bill to foreclose. 42 Ark. 236.

2. The property was not subject to execution and the levy and taking were unlawful. On failure to release replevin would lie. 52 Ark. 128. Cherry was a joint tort-feasor and liable. 7 Cyc. 18.

3. The evidence as to whether the team was offered to be returned to Dillard was properly submitted to a jury. Sinor and Stewart did not appeal. 48 Ark. 454; 70 Id. 74; 45 Id. 392; 43 Id. 230. There is no error.

OPINION

HUMPHREYS, J.

Appellee brought replevin in the Marion Circuit Court against B. F. Stewart, constable of Jefferson township, Lee Sinor and appellant to recover a horse and mule which had been levied upon and taken into custody by the constable under an execution, regular on its face, issued on a judgment theretofore obtained by appellant against appellee. It was alleged in the complaint that the Bank of Yellville had a mortgage on the horse and mule at the time the execution was levied on them and that for that reason they were not subject to levy and sale under the execution.

Appellant answered for himself and B. F. Stewart, the constable, in substance, that the property was not wrongfully taken from appellee, and denied that appellee was entitled to the possession thereof. He admitted that the property was seized under an execution as alleged in appellee's complaint, and charged that as soon as they discovered that the property was mortgaged in favor of the Yellville Bank he instructed the constable to return it to appellee and that the property was tendered to appellee on or about the 20th of November, 1916, but appellee refused to accept same.

Lee Sinor filed separate answer setting up that he was the keeper of a livery stable on or about the 11th day of November, 1916, and that the constable brought the property and placed it in his stable for purposes of feed and care; that he fed and cared for the stock up to the institution of the suit in replevin and that he was entitled to a lien on the stock in the sum of $ 80 under and by virtue of Section 5044 of Kirby's Digest; and as a further defense he charged that he and the constable tendered the property to appellee on or about November 20, 1916, and that appellee refused to accept same.

The cause was heard upon the pleadings, oral evidence and instructions of the court. The court instructed the jury to return a verdict in favor of appellee for the team and to determine whether or not they were wrongfully detained and to ascertain the usable value of the property during the time of detention. The jury returned a verdict in favor of appellee for his team and assessed damages for the detention thereof in the sum of $ 67. A judgment was rendered in accordance with the verdict against Lee Sinor, B. F. Stewart and J. J. Cherry. Neither Lee Sinor nor B. F. Stewart have appealed and are bound by the judgment. J. J. Cherry took the proper steps and has prosecuted an appeal to this court.

The evidence in the case is conflicting as to whether the property was unconditionally tendered...