Hunt v. Thompson
| Decision Date | 12 January 1912 |
| Docket Number | 671 |
| Citation | 120 P. 181,19 Wyo. 523 |
| Parties | HUNT v. THOMPSON |
| Court | Wyoming Supreme Court |
Original Opinion of January 12, 1912, Reported at: 19 Wyo. 523.
Re-hearing denied.
M. C Brown, for plaintiff in error, (on petition for rehearing).
The plaintiff's only wrong is in suing out the writ. That occurred at the commencement of the action, and that is the time to which the defendant's damages relate, and thereafter there can be no illegal detention. Damages cannot be recovered against the plaintiff for detaining property which has become his own in the manner authorized by law. The theory adopted by the court may often result in great injury and injustice. If damages are to be measured by the value of the use of property against a plaintiff after the property has been delivered to him, the amount will be determined, not from conditions existing at the time the action was brought but upon conditions at the time of the trial; and the damages may be much or little, depending upon the early or delayed determination of the case. In Gregory v. Morris, 96 U.S. 119, cited by the court in its opinion, it was not held that damages could be recovered by the defendant for either the wrongful taking or wrongful detention, but merely for wrongfully suing out the writ. The wrongful suing out of the writ is the act upon which only damages can be awarded to the defendant. The defendant suffered no damages by the taking of the property on the writ except the loss of his property. It was taken in a lawful way, and therefore the taking was not wrongful. The defendant declined to give a re-delivery bond and retain the possession, and the plaintiff exercised his privilege by giving bond and taking the property. Every act of the plaintiff, therefore, was lawful. He honestly believed that he had a right to the property. When the defendant succeeded upon the trial what had he lost? Merely the property, which, so far as he was concerned, is represented by its value. He was then entitled to value and interest thereon, and nothing more. His remedy was on the bond given by the plaintiff, and the plaintiff's liability became conditionally fixed when the property was delivered to him. The indebtedness related back to the date of the bond. A recovery upon the bond would include interest from its date as well as costs. There seems to be no reason why further damages than the value and interest should be allowed to the defendant. He can at any time replace the property by buying other property of like character. There was no wrongful detention, for the plaintiff could not wrongfully detain his own property; and it became his own property when he lawfully obtained the possession of it upon the writ.
ON PETITION FOR REHEARING.
A petition for rehearing has been filed in this case and counsel for plaintiff in error has ably and courteously discussed the question considered in the former opinion, contending that the court erred in holding that a defendant in replevin, if successful, is entitled to recover anything by way of damages for the detention of the property taken upon the writ; and that he may recover as such damages, under the circumstances stated in the opinion, the value of the use of the property instead of interest. It is earnestly argued that under our statutes a plaintiff in replevin who has acquired possession of the property taken upon the writ by giving the authorized undertaking cannot properly be said to wrongfully detain the same, and should not, therefore, be held liable to respond in damages as for its wrongful detention. The contention is plainly stated in counsel's brief that the plaintiff so acquiring possession of the property becomes the owner of it, and, for that reason, the measure of defendant's damages when he succeeds in the action should ordinarily be confined to the value of the property with interest thereon, as upon a debt. Counsel seems to concede, however, that there may be conditions where a writ wrongfully sued out will cause damage far beyond the value of the property and the interest thereon, such as where the property is shown to have had a peculiar value to the defendant, as property that cannot be purchased in the open market, or where the defendant through the wrongful suing out of the writ may have been prevented from performing a contract of sale requiring him to deliver the particular property. And we understand from the brief that it is also conceded that the defendant should, under all circumstances, be allowed to recover as damages an amount "commensurate with his loss." It is, however, insisted by counsel that the case at bar is not one authorizing the recovery of special damages, for the reason that the property taken might have been replaced by purchase in the open market, and the defendant can be fully compensated for his loss by the value of the property with interest thereon, and under the circumstances his recovery should be confined thereto.
It may be said that in this case the defendant alleged by his answer that by being deprived of the use of the property during the pendency of the action he was damaged in the sum of $ 200. Without considering whether the value of the use, if recoverable at all, would be upon the theory of special damages, or whether the allegation of the answer would be sufficient to authorize such recovery as special damages, we proceed to a discussion of the contention of counsel that a plaintiff in replevin after securing the delivery of the property to him cannot be held to wrongfully detain it. Counsel is mistaken in supposing that the question may have been decided upon less than the usual careful...
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