Frederick v. Mecosta Circuit Judge

• Decision Date: 06 February 1884
• Citation: 18 N.W. 343,52 Mich. 529
• Court: Michigan Supreme Court
• Parties: FREDERICK v. MECOSTA CIRCUIT JUDGE.

18 N.W. 343

52 Mich. 529

FREDERICK v. MECOSTA CIRCUIT JUDGE.

Supreme Court of Michigan

February 6, 1884

Some goods being seized in an attachment suit, the owner brought an action of replevin against the sheriff, and retook them. Before any judgment was rendered in the attachment suit the action of replevin resulted in a verdict for the defendant (the sheriff,) affirming his lien or special property in the goods by reason of his writ of attachment; the jury found also, that the plaintiff was general owner of the goods subject to the lien, and that the defendant did not wrongfully detain them. The defendant's attorneys waived a return of the property, and took a judgment for the special interest of the defendant. This judgment was erroneous. In such a case the only judgment that can be given is for a return of the property, to be held until the judgment in the attachment suit is rendered, and for 30 days thereafter. How.St. � 8351. Until such judgment there is no way to ascertain the value of the sheriff's special interest and, indeed, the judgment might destroy such special interest altogether.

In this case the verdict and judgment are combined in one entry; but they can be distinguished and separated, and, while the verdict should stand, the judgment should be vacated, and a proper one entered for the return of the property replevied.

Where rights of third parties are not prejudiced the courts have power to amend a judgment in furtherance of justice, after the lapse of terms, or even of years.

Mandamus.

Corbin & Cobb and Glidden & Marsh, for relator.

M. Brown and J.H. Palmer, for respondent.

CHAMPLIN, J.

We are all of opinion that a peremptory mandamus should issue in this case. The action out of which these proceedings arose was replevin brought by one Nathan Wolf against Frederick who, as sheriff of Mecosta county, had served attachments against the goods of one Abram Markson. These attachments were three in number, issued on behalf of different plaintiffs, two of them bearing teste January 20, and one January 22, 1883. The sheriff seized the goods on the twenty-third of January, and afterwards, on the same day, Wolf replevied the goods from the sheriff. Issue was joined in this cause, and the sheriff gave notice, under his plea of his special interest in the goods as sheriff by virtue of the attachments, and other special matter of defense. The replevin suit came on to be tried May 15, 1883, before judgments had been obtained in the attachment suits, and resulted in a verdict for defendant, and also that he had a lien or special property in the goods by reason of the several writs of attachment specifying them; and they also found that the plaintiff was the general owner of the goods subject to the attachment liens of defendant, and that the defendant did not unlawfully detain them. It appears that before the cause was submitted to the jury, the attorneys for the defendant expressly waived a return of the property mentioned in the writ, and elected instead thereof to take a judgment for the special interest of the defendant. This was erroneous.

Section 6754, Comp.Laws 1871, (How.St. � 8342,) provides: "When either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property, or part ownership, in the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, or on the assessment of value, or on the assessment of damages, in all cases arising under this chapter, and the finding of the jury, or court, as the case may be, shall be according to such fact, and the court shall thereupon render such judgment as shall be just between the parties." This section must be construed in connection with section 6763, (How.St. 8351,) namely: "If any goods or chattels which are replevied had been attached, they shall, in case of judgment for a return, be held liable to the attachment, until final judgment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if such final judgment be rendered before the return of the property, or if the property, when replevied, was seized and held on execution, it shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if such property had not been replevied."

It is apparent from the foregoing sections that in the plight in which this case was at the time of trial, no judgment for the value of the special interest of the defendant in the goods could be taken. There was no way of determining at that time what the value of his special interest was. No judgment had been obtained fixing the amount, and it was legally possible that no judgment would be obtained at all, in which case his special interest would at once cease. It is evident that the section of the statute first above cited refers to liens other than those of attachment or execution, while the latter section controls in all cases where goods are held by attachment or execution, and in the latter case the only judgment that can be taken is for a return of the property. The design of the law is to protect the rights of parties by restoring the goods to the hands of the officer in order to enable him to complete the execution of his process, which had been obstructed by the proceeding in replevin. Parties are thus enabled to try the title and ownership of the property seized, and the liability of the same to be taken in execution or attachment, and while these proceedings are in progress the goods may be considered as in custodia legis. If the officer's lien is established by showing that the goods were liable to be seized as the property of the debtor, they are to be returned to him, otherwise not. The statute in this respect is mandatory, and it is the duty of the court in such cases to render a judgment for a return of the property. When, therefore, in this case the defendant's attorneys discovered their error, and moved the court for leave to withdraw the waiver of judgment for a return of the property, and that judgment be entered for a return of the property taken under the writ of replevin, he should have granted...