Hinchman v. Doak

• Decision Date: 19 April 1882
• Citation: 48 Mich. 168,12 N.W. 39
• Court: Michigan Supreme Court
• Parties: HINCHMAN and another v. DOAK.

12 N.W. 39

48 Mich. 168

HINCHMAN and another v. DOAK.

Supreme Court of Michigan

April 19, 1882

Where a defendant in replevin sets up no right or claim to the property, but denies having been in possession when the writ was issued and served, and defends on that ground, and has verdict in his favor that he did not unlawfully detain, etc he has no claim to a judgment for the return of the property or for its value.

In an action of replevin the question on the merits was whether plaintiffs or a certain third party had a right to the goods under mortgage held by them respectively. The defendant set up no right to the goods, but denied that they were taken under the writ from his possession, and gave particular and circumstantial evidence that he was not in possession when suit was instituted. The jury returned a verdict that the defendant did not unlawfully detain, etc. Held, that under these circumstances the defendant was entitled to judgment for costs only; and the judge having sent the jury back to assess the value of the property, and given judgment for the defendant for the amount assessed, such judgment for value was reversed.

Error to Jackson.

A.M. Culver and Conely & Lucking, for plaintiffs in error.

Corbin & Cobb, for defendant in error.

COOLEY J.

Replevin for a stock of drugs and groceries. The property was taken on the writ and delivered to the plaintiffs. The defendant was personally served with process, and appeared and pleaded the general issue to the declaration. On the trial the plaintiffs claimed a right to the possession of the property under a chattel mortgage given by one Silsbee, the former owner; but it appeared that one Lewis had a prior mortgage covering a considerable portion of the goods, if not all of them, and that Lewis claimed to have taken possession under it.

The question, therefore, on the merits was, whether Lewis or the plaintiffs had the better right under their respective mortgages. The defendant not only set up no right in the goods himself, but he denied that he was in possession of them when the writ was issued or when it was served; and on the trial he gave very positive and circumstantial evidence in support of the denial. In submitting the case to the jury the circuit judge called attention to this evidence, and instructed the jury that if defendant was not in possession as he testified he was not, the action could not be maintained, for in ...