Leonard v. Maginnis

• Citation: 34 Minn. 506,26 N.W. 733
• Parties: LEONARD v MAGINNIS.
• Decision Date: 18 February 1886
• Court: Minnesota Supreme Court

34 Minn. 506

26 N.W. 733

LEONARDvMAGINNIS.

Supreme Court of Minnesota.

Filed February 18, 1886.

Appeal from a judgment of the district court, Ramsey county.

Warner, Stevens & Lawrence, for respondent, Charles Leonard.

Brown & Chew, J. A. Flaherty, and O'Brien, Eller & O'Brien, for appellant, Charles P. Maginnis.

GILFILLAN, C. J.

Replevin for certain horses and colts. In the action, plaintiff caused the property to be taken pursuant to title 8, c. 66, Gen. St. 1878; and, upon defendant complying with the requirements of the title for that purpose, it was returned to him, to abide the result of the action. It appears from the allegations and admissions of the pleadings that the property was taken in Stevens county by the defendant, sheriff of that county, upon an execution against the property of D. W. Watson and E. W. Leonard as their property, and that, after it was returned to defendant in this action, as above stated, and before the trial, he proceeded to sell it under the execution, and sold a part of it, the plaintiff becoming the purchaser; and the remainder of it not sold he restored to plaintiff. In making the levy and sale, the defendant assumed to levy on and sell the interest of D. W. Watson and E. W. Leonard in the property. The action was brought in Ramsey county, where plaintiff resides.

Before answering, defendant served a written demand that the place of trial be changed to Stevens county, on the ground that the taking and detaining by defendant were in that county, and as sheriff of that county; and, after answering, made a motion, on the pleadings and an affidavit, that the place of trial be changed to that county, which motion was denied. At the motion, it was clear, from the complaint, answer, and affidavit, that the gist of the action was the taking. Appellant insists that the taking and the detention being acts done by him in virtue of his office, he had a right, under sub. 2, § 48, c. 66, Gen. St. 1878, to a trial in Stevens county, where the cause of action arose; respondent, that under a clause in section 49 the cause might be tried in Ramsey county, where he resides; and if that clause includes every action for the claim and delivery of personal property wrongfully taken, the position of respondent is right. Section 47 provides that certain actions shall be tried in the county in which the subject of the action, or some part of it, is situated,-among them sub. 4, “for the recovery of personal property detained for any cause;” section 48, that certain actions shall be tried in the county where the cause of action or some part of it arose, among them actions “against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office;” section 49 provides for “all other cases;” that is, all cases not provided for in sections 47 and 48. After making provisions for such “all other cases,” comes this clause, on which respondent relies: “Provided, that in an action for the claim and delivery of personal property, wrongfully taken, the action may be brought and maintained in the county where the wrongful taking occurred, or where the plaintiff resides.”

When it is considered that sections 47 and 48 cover all actions for the recovery of personal property detained for any cause, among which are necessarily included those where the taking was wrongful, it is apparent that the clause quoted goes beyond the general scope of the section in which it is placed, and includes cases otherwise provided for in one or other of sections 47 and 48; and, having been enacted (1877) subsequently to the enactment of those sections, it takes out of their operation all the actions specified in it, and, to that extent, operates as an amendment or repeal of them. This case comes within the very terms of the clause, and might therefore be brought and maintained in either county. The motion to change the place of trial was properly denied.

As the...