Hanselman v. Kregel

• Decision Date: 15 April 1886
• Citation: 27 N.W. 678,60 Mich. 540
• Court: Michigan Supreme Court
• Parties: HANSELMAN v. KREGEL.

27 N.W. 678

60 Mich. 540

HANSELMAN v. KREGEL.

Supreme Court of Michigan

April 15, 1886

Error to Wayne.

W.L. January, for plaintiff.

Walter Barlow, for defendant and appellant.

MORSE, J.

The defendant, on the twenty-eighth day of January, 1885, sold to the husband of the plaintiff one plush parlor suit and one marble-top table, for $90, taking his due-bill therefor. The plaintiff was with her husband, and helped to select the articles. After selection the furniture was set out to one side. The next morning plaintiff and her husband went to the store of defendant to find out why he did not deliver the furniture. The defendant replied he could not do so, as one Valentine Schroeder had garnished him. Mr. Hanselman then said to defendant: "I don't see why you shouldn't deliver the furniture; it belongs to me, and is household property." Schroeder had sued Hanselman, and served a garnishment upon defendant, the same day of the purchase of the furniture. Hanselman confessed judgment in the suit of Schroeder, and the defendant, on the seventh day of February the return-day of the writ, disclosed that he held in his possession the aforesaid furniture, of the value of $90, of the goods and chattels of said Hanselman. Plaintiff made several demands of the property of defendant orally, and on the twelfth day of February served a written notice upon him that the property was exempt under the statute, and that he must not deliver it to Schroeder until a trial of the garnishee suit was concluded, as she claimed a distinct interest in the property. A second summons in the garnishee proceedings was served upon defendant to show cause why judgment should not be entered against him upon his disclosure in favor of Schroeder, and, March 2 1885, judgment in such proceedings was rendered in favor of the defendant against Schroeder. In the mean time, and on the nineteenth day of February, the plaintiff commenced this action of replevin against the defendant before a justice of the peace, in which suit the justice rendered judgment for the defendant, March 14, 1885. Plaintiff then appealed to the circuit court for Wayne county, where the case was tried before a jury, and judgment rendered in her faver. The plaintiff perfected her appeal from justice's to circuit court, March 19, 1885. After the judgment against her in justice's court, and before her appeal, she called at the store of the defendant, on the seventeenth day of March 1885, and again demanded the goods. The defendant loaded them on his wagon, and his men took them to the plaintiff and her husband's house. About the time the wagon with the goods arrived at the house, an officer came there, and, as the furniture was unloaded from defendant's wagon, seized the property from the sidewalk, or in the yard of the house under an execution against plaintiff's husband in favor of Schroeder, and carried them away.

Subsequent to this levy the plaintiff and her husband commenced a suit against the officer and Schroeder, claiming the property as exempt from execution, in which suit judgment was rendered against plaintiff and her husband.

The errors assigned by defendant all relate to the instructions of the court below to the jury, and the refusal of the circuit judge to charge as requested by his counsel on the trial. The request refused was as follows: "That by the plaintiff and her husband following the goods in question into the hands of the officer who levied upon them, and trying to recover them from the officer and Valentine Schroeder, in a suit against them, she acquiesced in the delivery made by the defendant, and is now estopped from denying that a delivery was made by him."

The portions of the charge objected to by defendant are: First. That plaintiff had a right to commence her suit while the garnishee proceedings were pending. Second. The court below erred in charging the jury that if there was any understanding and arrangement between the defendant and the officer, whereby the possession of the goods in question, instead of passing from the defendant to the Hanselmans, should pass from the defendant to the officer, and that such delivery took place to the officer in pursuance of that arrangement, then the jury might find that there was no delivery in fact or in law to the Hanselmans. Third. The court below erred in submitting to the jury the question as to whether there was a collusion between defendant and the officer that the officer was to levy on the goods in question at the time defendant delivered them at Hanselman's house. Fourth. The court below erred in instructing the jury that they might find an unlawful detention of the property. Fifth. In charging the jury as follows: "I think the jury may find that there was an unlawful detention of the property, and assess the damages, and determine the value of the property, unless it be admitted here."

The bringing of the second replevin suit against the officer and Schroeder was not inconsistent with plaintiff's claim against defendant. By some sharp practice upon the part of the defendant, the property could not be found at the time of the service of her writ of replevin. She might well have preferred the possession of the property to a judgment for its money value, and when she saw it in the possession of another party, had a right to endeavor to reclaim it as against such person without abandoning her suit against defendant. If the property had been delivered to her under her writ in the first instance, and had been in her possession at the time of the levy by the officer, she would certainly have had a right to bring replevin against the officer, or to have sued him in trespass, without abating her original suit against defendant; and as she accepted no delivery from the defendant, she was at liberty to follow the officer, and endeavor to get possession of the furniture without thereby discharging the defendant from the wrong he had before done her in refusing to deliver the property in the first place. The suit at bar must be considered as having been pending at the time this attempted delivery was made, and we cannot see why her conduct in bringing replevin against the officer can alter the status of the parties in this suit, which must be determined by their rights when the case was commenced. If she had recovered the property, that fact could have been received in mitigation of damages; but failing to get it, her action has not prejudiced the defendant in any way. She has done nothing that can be urged in the way of an estoppel of her right to still proceed against the defendant. Neither by her words nor her conduct has she given the defendant cause to believe that she had no claim against him for the property, nor has he been induced to do, or not to do, anything to his disadvantage by her pursuit of the officer. The action against him was begun before the seizure under the levy was made, and all that he has done of which she complains, or for which she seeks a remedy in this suit, was done before she brought suit against the officer, and whatever redress she has sought or obtained in the case at bar has not been affected by her acts subsequent to the bringing of her suit against defendant. Nor under the charge of the court as given were defendant's rights impaired in the slightest degree by her attempt to reclaim the property from the levy. In fact, if she had succeeded, he would have been benefited to the extent of the value of the property in this action.

It is further urged that plaintiff had no right to bring her suit while the garnishee proceedings were pending against the property in question as the goods and chattels of her husband. It is claimed because s...