Schwantz v. Pillow

• Decision Date: 03 March 1888
• Citation: 7 S.W. 167,50 Ark. 300
• Parties: SWANTZ v. PILLOW
• Court: Arkansas Supreme Court

7 S.W. 167

50 Ark. 300

SWANTZ v. PILLOW

Supreme Court of Arkansas

March 3, 1888

APPEAL from Phillips Circuit Court, M. T. SANDERS, Judge.

STATEMENT.

This was an action of replevin brought by Swantz against Pillow the sheriff of Phillips county, to recover a mule which Pillow took from the possession of Swantz under a writ issued to him from the circuit court. The cause was tried by the court, sitting as a jury, upon an agreed statement of facts in substance as follows: On the 2nd day of March, 1886, L. A Fitzpatrick brought an action of replevin in a justice's court against O. D. Hudson to recover possession of a black horse mule. An order of delivery was issued in that action and placed in the hands of an officer authorized to execute it, and Fitzpatrick executed in the presence of such officer the bond required by law. The officer there upon took the mule from the possession of Hudson, but within two days after its seizure Hudson caused to be executed, with sureties to the satisfaction of the officer, a bond as provided in section 5581 Mansf. Dig., and the mule was restored to him. A trial of that action was had, and from the judgment rendered therein by the justice, an appeal was prosecuted to the Phillips circuit court, and on the trial of the appeal, the mule was adjudged to be the property of Fitzpatrick. Before the trial of the appeal, the appellant, Swantz, bought the mule from Hudson and paid for the same the sum of $ 125 which was its full market value. At the time of his purchase Swantz knew that the action of Fitzpatrick to recover the mule was pending. Upon the trial of the appeal Fitzpatrick obtained a judgment against Hudson to the effect that he recover of Hudson the mule mentioned if to be had; if not $ 75 for its value, and $ 10 for its detention, together with costs. And it appearing to the court that E. H. Ross was surety on the bond given by Hudson to retain the mule, it was further adjudged on said appeal that Fitzpatrick recover of Ross the sum of $ 75, the value of the mule, and $ 10 damages for the detention of the same, together with all costs for which it was ordered that execution might issue. On the 29th day of May, 1886, there was issued from the office of the clerk of the Phillips circuit court, and directed to the sheriff of that county, an execution in the following words: "You are commanded that you take from the possession of O. B. Hudson one black horse mule, which L. A. Fitzpatrick, late in our Phillips circuit court recovered against him, and make, of the estate of O. B. Hudson and E. H. Ross, the sum of ten dollars, which said Fitzpatrick recovered against said Hudson for damages for the detention of the said mule; and if you fail to find or get said mule, then you are commanded that you cause to be made the sum of seventy-five dollars, the value of said mule and the sum of ten dollars which was recovered for the detention of said mule, which L. A. Fitzpatrick late in our Phillips circuit court recovered against O. B. Hudson and E. H. Ross, his surety, for the value of said mule and damages, with interest at six per cent from the 28th day of May, 1886, and the sum of sixteen and 90-100 dollars for the costs in this behalf expended; and that you make due return of this writ in sixty days, showing how you have served the same. In witness: J. F. Humphries, Clerk." The sheriff in his effort to execute this process did not find the mule described in the writ in the possession of the defendant O. B. Hudson, but did find it in the possession of the appellant Swantz, who informed the sheriff that he was the owner of the mule by virtue of his said purchase. But notwithstanding this claim, the appellee, Pillow, took the mule and delivered it to Fitzpatrick. At the time of the taking of the mule from Swantz, its value was $ 112.50, and the value of its use from the time of the taking was $ 12.50. The finding and judgment of the court were for the defendant, and the plaintiff appealed.

Affirm.

James P. Clarke for appellant.

The appellee, was a trespasser, because the writ under which he acted commanded him to take the animal from Hudson, and if he failed to find it, to make a certain sum of money out of Hudson, etc. This did not authorize a taking from Swantz, he claiming the mule as his own by virtue of a purchase from Hudson before judgment in the replevin case. Wells on Replevin, secs. 267, 264, 5-6. Under our statute, the bond takes the place of the property, and the defendant has the election to return the property or pay its value. 7 Cal. 568; see also 9 N.Y. 470; Ib., 559; 37 Ark. 548.

J. J. & E. C. Hornor for appellee.

1. In replevin the writ of possession runs against the property; replevin is designed to recover the specific personal property. Mansf. Dig., sec. 5571; Wells Repl., sec. 33. The bond executed under sec. 5581, Mans. Dig. serves only to allow defendant to retain possession until the right of possession is adjudicated. Its effect is that he will perform the judgment of the court. The judgment must be in the alternative, but the right to a return of the property in specie cannot be taken away. Mansf. Dig., secs. 5145, 5181; 10 Ark. 511; 14 Id., 427; 29 Id., 383; 37 Id., 550. The property, even though retained by defendant, is in custodia legis. Wells Repl., secs. 40, 395; 28 Kan. 446; 42 Ill. 34. The real owner is entitled to recover of an innocent purchaser if the property is sold. Wells Repl., sec. 476; 11 Cal. 262; 113 Mass. 402.

2. Appellant acquired no rights against the prevailing party, having purchased pendente lite. Well Replevin, sec. 476; Freeman. Ex., secs. 171, 194; 11 Ark. 411; 12 Id., 421; 16 Id., 175; 76 N.Y. 121; 1 Dana, 578.

3. Appellant had actual notice of the claim asserted against his vendor. 112 U.S. 183.

OPINION

COCKRILL, C. J.

In replevin, the delivery of the property is the primary object of the action. The value is to be recovered in lieu of it, as an alternative only "in case a delivery cannot be had" of the specific property. Mansf. Dig sec. 5181. Whatever purpose beneficial to the defendant the judgment in the alternative may serve, it is not put in that form to give one who has been...