Fay v. Duggan

• fullCitation: Fay v. Duggan, 135 Mass. 242 (Mass. 1883)
• Decision Date: 22 June 1883
• Citation: 135 Mass. 242
• Parties: James J. Fay v. John A. Duggan
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 242

James J. Fay v. John A. Duggan

Supreme Court of Massachusetts

June 22, 1883

Suffolk. Replevin of certain personal property. The answer alleged that the defendant took the property as a constable of the city of Boston, by virtue of a writ issuing from the Municipal Court of Boston, against one William G. Thwaites which writ was returned by him into court. The answer further alleged that, at the time of the taking, the plaintiff had no property in, or right of possession of, said property. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on the following agreed facts:

"The goods replevied were, at the time of the service of the plaintiff's writ, and at the time of the attachment hereinafter mentioned, the joint property of the plaintiff and William G. Thwaites, who were copartners under the style of Thwaites and Fay, being partnership property; and were held by the defendant, as a constable, by virtue of an attachment, in an action in the Municipal Court of Boston, in which judgment has since been entered against said Thwaites which remains unsatisfied."

Judgment entered for the plaintiffs.

N. B. Bryant, for the plaintiff.

J. D. Thomson, for the defendant.

Colburn J. Field & W. Allen JJ., absent.

OPINION

Colburn, J.

Upon the agreed facts, the defendant was a trespasser, and the owners of the property attached were entitled to recover it in an action of replevin against him. Sanborn v. Royce, 132 Mass. 594. Both partners should have joined in the action of replevin. Hart v. Fitzgerald, 2 Mass. 509. Ladd v. Billings, 15 Mass. 15. Kimball v. Thompson, 4 Cush. 441. Hackett v. Potter, 131 Mass. 50. The plaintiff objects that nonjoinder of Thwaites as plaintiff could only be availed of by plea in abatement.

By submitting the case upon agreed facts, the parties waived all questions of pleading, and the case is to be determined on its merits, upon the facts agreed, as if the questions relating to them had been presented upon proper pleadings, and matters which can be taken advantage of in pleading only by plea in abatement are not open in a case submitted on an agreed statement of facts, unless specially reserved. Scudder v. Worster, 11 Cush. 573. Esty v. Currier, 98 Mass. 500. West Roxbury v. Minot, 114 Mass. 546. Smith v. Carney, 127 Mass. 179.

There is some conflict of authority, but we are of opinion that, by the weight of authority, joint ownership of the plaintiff and another in replevin may be pleaded in bar, and not necessarily in abatement. The question has not been expressly decided in this State, though the reasoning in Hart v. Fitzgerald, ubi supra, is in favor of the view we take; but the decision in that case, as the plaintiff brought his writ for only an undivided part of the property, did not necessarily settle the question.

In Reinheimer v. Hemingway, 35 Pa. 432, 438 Mr. Justice Strong says: "In Hart v. Fitzgerald, 2 Mass. 509 at 511, it was ruled that a part owner of a chattel cannot maintain replevin for his undivided part, and if it appear in the writ, the court will arrest the judgment. Part ownership in another is therefore pleadable in bar and not exclusively in abatement." "The plea of property imposes upon the plaintiff the necessity of establishing his title, and his right to the...