Hopkins v. Bishop

• Decision Date: 08 April 1892
• Citation: 51 N.W. 902,91 Mich. 328
• Court: Michigan Supreme Court
• Parties: HOPKINS v. BISHOP.

51 N.W. 902

91 Mich. 328

HOPKINS v. BISHOP.

Supreme Court of Michigan

April 8, 1892

Error to circuit court, Kent county; ALLEN C. ADSIT, Judge.

Replevin by Thomas J. Hopkins against Loomis K. Bishop. Judgment for plaintiff. Defendant brings error. Reversed.

C. O. Smedley, for appellant.

D C. Lyle and Stuart & Knappen, for appellee.

MORSE C.J.

The defendant, as sheriff of Kent county, represents in this litigation attaching creditors of Clinton H. Hopkins, a son of the plaintiff. The plaintiff brought replevin for the goods attached, and recovered judgment in the Kent county circuit court. It was shown by the plaintiff on the trial that his son, who was in the mercantile business at Cedar Springs, was unable to meet his obligations; and that plaintiff was signer of two notes, with his son, to one McBryer, for the means with which to engage in business. These notes were for $1,000 and $800, and there was due upon them, December 15, 1890, $1,898. On that day plaintiff took up these notes and gave his individual note in their stead and his son gave him a bill of sale of the stock and fixtures in his store, estimated to be worth $1,500. The book-accounts, amounting to about $700, and what cash there was on hand, were retained by the son. Plaintiff then went to the store with his son, who delivered the key to him, and informed the clerk that plaintiff was thereafter to be proprietor. Plaintiff then hired the clerk and his son to run the business for him. Two days thereafter the attachment levies were made. December 23, 1890, plaintiff replevied without making any demand for the goods. It is contended that a demand should have been made, as the goods were found in the possession of the son, Clinton H. Hopkins, against whom the writs of attachment ran. Authorities are cited to the effect that, where property seized on attachment or execution is found by the officer in the actual custody of the person named in the writ, the possession under the levy is lawful and a demand is necessary before replevin can be brought. In this state, a demand before suit is not requisite if, at the time of the levy, the goods seized are the property of the person suing in replevin. The fact that such goods are in the lawful possession of the person named in the writ of attachment or execution does not affect the right of the owner as against one taking possession of them in hostility to him. The question of demand before suit by the owner to regain possession of his property depends upon whether the taking was lawful as against him. If the plaintiff in this case had a right to recover this property from the sheriff, no demand was necessary. The sheriff may have, in good faith, levied upon these goods, believing them to be the property of Clinton H. Hopkins; but, as the right of plaintiff to regain possession of them does not at all depend upon the good faith of the officer in taking them there is no good reason, as shown in Trudo v. Anderson, 10 Mich. 357, for a demand before suit. The taking, if the plaintiff was owner, was a trespass, and would itself have constituted a conversion in trover without proof of a demand and refusal.

There are several assignments of error to the refusal of the circuit judge to give defendant's requests to charge. These requests are not set out in the bill of exceptions, nor in the printed record, except as they appear in the assignments of error. These assignments form no part of the bill of exceptions, and we cannot presume against the validity of a judgment that a request to charge, not found in the bill of exceptions, was presented to the circuit judge, from the mere fact that such request is set out in the assignments of error. The assignments, therefore, as to the requests not given by the court, will not be considered. Lindner v. Hine, 84 Mich. 512, 48 N.W. 43.

It is assigned as error that the circuit judge modified the tenth request of defendant, which was as follows: "The sale must be accompanied by an actual and continued change of possession as well as a nominal and constructive change, or the transaction will be deemed fraudulent as against creditors; and a construction which would allow the vendor or assignor of a stock of goods to continue in possession thereof, and to sell them out as the agent of the purchaser...