Dermer v. Faunce

• Decision Date: 07 February 1947
• Docket Number: 65.
• Citation: 51 A.2d 76,187 Md. 610
• Parties: DERMER v. FUNCE et ux.
• Court: Maryland Court of Appeals

51 A.2d 76

187 Md. 610

DERMER v. FUNCE et ux.

No. 65.

Court of Appeals of Maryland

February 7, 1947

Appeal from Superior Court of Baltimore City; Edwin T. Dickerson Judge.

Action of replevin by Leon Dermer against Wesley H. Faunce and wife. From an order directing issuance of writ of retorno habendo for the articles replevied, plaintiff appeals and defendants move to dismiss the appeal.

Appeal dismissed.

R. Lewis Bainder, of Baltimore, for appellant.

Forrest Bramble, of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

COLLINS Judge.

The appellant, Leon Dermer, plaintiff, brought an action of replevin in the Superior Court of Baltimore City against Wesley H. Faunce and Rebecca Faunce, defendants, appellees for five radiators, two Unit heaters and one control, one Teco hot water heater and loose piping and fittings, which were on the defendants' premises in Baltimore City. The writ was sent to the Sheriff of Baltimore City, who went to defendants' premises and disconnected and removed from the premises the articles described in the declaration. To the action of the plaintiff, appellant, the defendants appellees, filed in writing a motion for a writ of retorno habendo for the property taken under the writ of replevin. Poe Pleading and Practice (Tiffany Edition), page 422 Section 433. An answer was filed by the plaintiff, appellant, to the petition for the writ. Replication to plaintiff's answer to petition for writ of retorno habendo, and pleas to the declaration were filed by the defendants. A replication to the pleas of the defendants was filed by the plaintiff. After hearing on the petition, the Court, on July 10, 1946, ordered the issuance of the writ of retorno habendo for the articles replevied, upon defendants giving a bond in the penalty of $100. From that order of July 10, 1946, the plaintiff, appellant, appeals to this Court. The appellees filed here a motion that the order of July 10, 1946, is not a final order and not appealable, and therefore the appeal to this Court should be dismissed.

It is provided by Code 1939, Article 75, Section 125, in part as follows: 'The court, upon return of any writ of replevin, shall have power, upon motion being made by the defendant for a return of the property taken under the writ, to inquire into the circumstances and manner of the defendant's obtaining possession of such property; and if it shall appear that such possession was forcibly or fraudulently obtained, or that the possession being first in the plaintiff was got or retained by the defendant without proper authority or right derived from the plaintiff, the court may refuse to order a return to the defendant until a judgment is given in the action.'

It is said in Poe on Practice, Vol. 2, supra, at page 422, Section 432, in discussing the motion for the return of the goods 'In passing upon the question, the court does not take into consideration the right of property, but merely the right of...