Coit v. Waples

• Decision Date: 01 January 1852
• Citation: 1 Minn. 134
• Parties: DANIEL COIT vs. ROBERT C. WAPLES et al.
• Court: Minnesota Supreme Court

Page 134

1 Minn. 134

DANIEL COITvs.

ROBERT C. WAPLES et al.

Supreme Court of Minnesota.

Error to district court, Washington county.

Action in replevin, commenced by the defendants here, in 1850, to recover a quantity of lumber and lath. The declaration alleged a taking and detention by defendant, but did not aver that it was wrongful. The defendant demurred, assigning as his first and third grounds of demurrer, that the declaration did not allege a wrongful or illegal taking, or a wrongful taking and detention. The demurrer was overruled, and the defendant pleaded the general issue, and, on a trial by a jury, there was a verdict for the plaintiffs below. Before the trial, the defendant moved for a continuance, on account of the absence of testimony to show title in himself. This application was denied. On the trial, the plaintiffs gave evidence tending to prove title in them, and a taking by defendant.

Among the evidence offered by plaintiffs, and received against defendant's objection, was the contract by which they purchased the lumber, and the deposition of one Brownell, which tended to prove title in them, and also to identify the property. The deposition was objected to as not properly executed. The defendant offered evidence to disprove plaintiffs' title which was rejected, and also by the testimony of himself, fully identified the property, and gave evidence tending to show that he had bought it from one Perkins, who had a lien on it. Of the instructions to the jury given by the court, the first, third, and fourth propositions related to the title. The second was as follows: "That if the jury believed from the evidence, that the lumber in controversy was forcibly taken from the possession of the plaintiffs, after delivery to them, by those under whom defendant claims title, they must find for the plaintiffs," to which defendant excepted. Several requests by defendant to charge the jury were refused or qualified by the court. The request refused, related to plaintiffs' title, and those qualified, related to the alleged lien of Perkins, and his right of possession under it, and his right to transfer it.

After the jury had been out some time, they came in and stated to the court, that they could not agree, and requested further instructions. The court commenced to read to them the minutes of the evidence, when the parties consented that they might take the minutes out with them. After the jury had retired again, and been gone some time, the court discovered that, by inadvertence, it had omitted to give them the deposition read in evidence, and sent for and read it to them. To these proceedings defendant excepted. The jury returned a verdict, finding the title and right of possession to the property in plaintiffs, and found generally for plaintiffs, and against defendant "with costs." The defendant objected to the verdict: First, that it did not assess the value, as required by statute. Second, that it was not in accordance with the declaration, and not a correct verdict upon the issue. Third, that it was insufficient, and judgment could not be rendered upon the issue thereon. Fourth, that it was against law and the evidence.

On a statement of the case, the defendant made a motion for a new trial, which was denied, and judgment entered for plaintiffs.

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Ames & Van Etten, for plaintiff in error.

Emmett & Moss, for defendants in error.

CHATFIELD, J.

I think the motion of the defendants in error to dismiss the writ of error in this case, should be denied. It is not allowable to controvert the record by affidavit, and the record shows that the judgment was rendered in February, previous to the issuing of the writ of error, in August. The return day of the writ of error is sufficiently definite.

In my opinion, the district court erred in overruling the demurrer of the defendants below, to the plaintiff's declaration. The first and third causes of demurrer, specially assigned, were good. But the defendants below have elected not to stand upon their demurrer in the case, and have pleaded issuably, concluding to the contrary. They have thereby waived all exceptions to the decision of the district court on their demurrer. The case stands here precisely as if no demurrer had been interposed. 1 Denio, R. 222. 6 Hill, R. 621.

The defect in the declaration was the absence of the word "wrongful," in the charge against the defendant below, for taking the property, the action being replevin. The plaintiffs below should have alleged that the defendant wrongfully took the property. The language of the statute under which the action was brought, I think such as to require it, and was this a case of first impression, I should be inclined to the opinion that the defect or omission would sustain a motion in arrest of judgment after verdict, or a writ of error after judgment. The statute of replevin of New York, was, in this respect, precisely like the statute of Wisconsin, under which this action was brought. In the case of Reynolds v. Lounsbury, (6 Hill, R. 534,) which arose under the New York statue of replevin, this very question was made and decided. Bronson, J., in delivering the opinion of the court, said, "The plaintiffs should have alleged that the defendant wrongfully took the property; but the defect is cured by the verdict. We must now presume that the court would not have allowed a recovery unless it appeared that the taking was wrongful." This authority is too direct, and of too high a character to be disregarded, especially upon a doubtful question like this. I therefore adopt the opinion of the supreme court of New York upon this question, and hold that the said defect in the declaration in this case, is cured by the verdict.

Before considering the other questions in this case, it is best to define the issue between the parties and their respective rights under it.

The declaration is in replevin in the cepit — alleging that the defendant below took the property, and unjustly detained the same, &c. The plea is non cepit — that the defendant below did not take and detain the property in manner and form, &c. The plaintiff in error insists that this issue involves the question of title to the property — that the plaintiffs below could not, under this issue, recover the property without establishing by proof upon the trial, their title to it, and that if the defendant below had succeeded upon the trial of the issue, he would have been entitled to judgment pro retorno habendo. The plaintiff in error claims, that, under the statute of Wisconsin in force here when the action was brought, this is the effect and extent of the issue made by his plea, because the declaration alleges, and the plea denies the unjust detention as well as the taking. He is manifestly wrong in this position. The statute of Wisconsin gives the action of replevin in two distinct classes of cases, and defines the effect of a plea of the general issue in each class: First, it retains and simplifies the proceedings in the common law action of replevin, which could be maintained only in cases in which the wrongful taking of the property was alleged. Second, as a substitute for the common law action of detinue, (which was abolished,) it gives the action of replevin in cases in which the wrongful detention only, and not the wrongful taking, is complained of. In the former class of cases, the wrongful taking is the gist of the action, and the statute is silent as to what the declaration shall contain; thus leaving the declaration, in such a case, to be guided and governed by the rules of pleading applicable thereto in the common law action of replevin. But the statute declares, that "the plea of the general issue shall be as heretofore, (referring directly to the form of the plea of the general issue in the action at common law,) that the defendant did not take," &c., and that "such plea shall put in issue, not only the taking, * * but such taking, in the place stated, where the place is material." The only change which the statute makes in the effect of this plea, is this — that it does not put in issue the place of the taking, unless the place be material. At common law this plea put in issue the place of taking in all cases, and required the plaintiff to prove the taking in the place stated, or fail in his action. In the latter class of cases, the statute directs what the declaration shall contain, as well as what the plea of the general issue shall be. This plea, which is directly responsive to the allegation which the statute requires the declaration to contain, is exactly the same that the plea of the general issue — non detinet — was, in the old action of detinue. The statute declares that this plea "shall put in issue, not only the detention of the goods, &c., but also the property of the plaintiff therein." Such was the effect of the same plea in the old action of detinue. It is only in this class of actions of replevin, in which the wrongful detention is, as it was in the old action of detinue, the gist of the action, that the plea of non detinet is allowable, and it is this plea only which the statute declares shall put in issue the plaintiff's title to the property in question.

In each of these two classes of cases in replevin, the plea of the general issue, as prescribed by the statute, is based upon this well established rule of common law pleading — that it is the proper office of the plea of the general issue to deny the gist of action in which it is pleaded, and make the issue thereon. The taking of the property being complained of in this case, it falls within the class first above stated; consequently the declaration, plea, and issue must be controlled by the common law rules governing the action, except so far as the effect of the plea is relaxed by the provisions of the statute — a modification relieving the...