Lucas v. Sheridan

• Decision Date: 05 April 1905
• Citation: 102 N.W. 1077,124 Wis. 567
• Parties: LUCAS v. SHERIDAN ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 567

102 N.W. 1077

LUCAS

v.SHERIDAN ET AL.

Supreme Court of Wisconsin.

April 5, 1905.

Appeal from Circuit Court, Fond du Lac County; Michael Kirwan, Judge.

Action by C. E. Lucas against Bernard Sheridan and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This is an action for the wrongful and unlawful taking from the possession of the plaintiff, October 8, 1901, and carrying away and converting to their own use, of certain personal property described, of the alleged value of $550, for which amount the plaintiff claims damages and prays judgment. It appears from the record that on or about June 28, 1901, the plaintiff purchased from one Ed. Wheeler a certain houseboat, and upon that day obtained from him a bill of sale of the same. The complaint alleges that all of the personal property mentioned was at the time of such conversion within said houseboat, and belonged to the plaintiff. The answer alleges, in effect, that the defendants, as such sheriff and undersheriff, on October 8, 1901, by virtue of an execution against the goods and chattels of said Ed. Wheeler, issued by a justice of the peace October 4, 1901, upon a judgment entered before him in favor of one S. S. Willis, and against Ed. Wheeler, for $125.80, damages and costs, seized and took possession of said houseboat as the property of said Ed. Wheeler; that at the time of such seizure the personal property mentioned was in said houseboat, of which the plaintiff claimed to be the owner; that at the time of such seizure the defendants notified the plaintiff that they had taken the houseboat by virtue of such execution, and to remove therefrom any articles of personal property belonging to him, which the plaintiff then and there absolutely refused to do; that the defendants then and there caused all of such articles to be removed from the houseboat a short distance, to the bank of the river, and immediately thereafter notified the plaintiff of such removal, and the place where such articles were located; and the defendants specifically deny that they carried away or converted to their own use any of said articles of personal property. The issues so joined were tried, and at the close of the trial the jury returned a verdict against the defendants and in favor of the plaintiff, and assessed his damages at $487. From the judgment entered thereon for that amount of damages, and $63.17, costs and disbursements, the defendants bring this appeal.Reilly, Fellenz & Reilly, for appellants.

T. L. Doyle, for respondent.

CASSODAY, C. J. (after stating the facts).

The houseboat mentioned is not here in controversy. Counsel for the defendants concede that after they seized the houseboat as the property of Wheeler, as mentioned, it was replevied by the plaintiff, and that 11 days after such seizure it was found to be the property of the plaintiff in this action, and so was turned over to him by the defendants. The controversy here relates entirely to the articles of personal property belonging to the plaintiff and inside of the houseboat at the time of such seizure.

1. Exception is taken because, in charging the jury, the court, among other things, said: “But if the man in charge of the boat knew that the plaintiff was the owner, or if at that time he was so informed by the plaintiff, and if the custodian then forbade the plaintiff to take the property in suit, such denial of the plaintiff's right was a denial by the defendants, and amounted to an assertion on their part of the control or dominion over this property, and was a conversion of it, in the law; and, if you find that such was the fact, then the plaintiff is entitled to recover of the defendants the full value of his property which was removed by them from the houseboat, unless you are satisfied that at a later date they offered to return to him the property, or offered to permit him to take it, and...