Norwegian Plow Co. v. Bellon

• Court: Supreme Court of South Dakota
• Writing for the Court: BENNETT, P. J
• Citation: 4 S.D. 384,57 N.W. 17
• Parties: NORWEGIAN PLOW CO., Plaintiff and appellant, v. DAVID BELLON and F. M. Hennis, Defendants and respondents.
• Decision Date: 09 December 1893

4 S.D. 384
57 N.W. 17
NORWEGIAN PLOW CO.,
Plaintiff and appellant,
v.
DAVID BELLON
and F. M. Hennis,
Defendants and respondents.


South Dakota Supreme Court
Appeal from Circuit Court, Hutchinson County, SD
Hon. E. G. Smith, Judge
Affirmed

Geo. P. Harbon
Attorney for appellant.

D. G. Maclay
Attorneys for respondent.

Opinion filed Dec. 9, 1893

BENNETT, P. J.

From the record we find that this is an action in claim and delivery, wherein the plaintiff alleges in its complaint that the defendants wrongfully took from its possession and detain from it certain personal property of which it claims to be the owner. The defendants, who were at the commencement of this action, and prior thereto, respectively the sheriff and deputy sheriff of Hutchinson county, justify the taking and holding of the property by virtue of three writs of attachments

[4 SD 385]

which were sued out in three several actions commenced by three parties against H. H. Miller & Son, and who claimed that at the time the attachments were levied the said H. H. Miller & Son were the owner of the property attached, and not the plaintiff. Upon the issues thus raised a trial was had before the court without the intervention of a jury, and a judgment rendered in favor of the defendants, from which an appeal is taken.

The assignment of errors, which is the appellant’s complaint on appeal, raises but one question for the determination of this court; that is, was the appellant the owner of, and entitled to the possession of, the property mentioned in the writ of replevin at the time the property was taken by virtue of said writ? To maintain an action in claim and delivery the plaintiff must show a present right to the specific property mentioned in the writ. It is well established that the action cannot be maintained unless the plaintiff have the actual or constructive possession of the goods, or a general or special property in them, with a right to immediate possession. He must have such a title in them as authorizes him to reduce the goods to his possession at the commencement of his suit. Cannon v. Kinney, 3 Scam. 9; Heath v. West, (NH) 101; Hume v. Tufts, 6 Blackf. 136. When the question of title is put in issue, and the right of possession is to be determined by the question of title, the burden is on the plaintiff to show a superior title in himself. The question is, which has the better title?...