Sexton v. McDowd

• Decision Date: 15 January 1878
• Citation: 38 Mich. 148
• Court: Michigan Supreme Court
• Parties: Jared A. Sexton v. Eleanor J. McDowd

38 Mich. 148

Jared A. Sexton v. Eleanor J. McDowd

Supreme Court of Michigan

January 15, 1878

Submitted October 31, 1877

Error to the Superior Court of Detroit.

Trover against the sheriff for conversion by means of an unlawful seizure. Defendant below brings error. The facts are in the opinion.

Judgment reversed with costs and a new trial granted.

Ed. E Kane and Fred. A. Baker for plaintiff in error. Judgments cannot affect third parties, Case v. Reeve, 14 Johns. 81; Castle v. Noyes, 14 N. Y., 332; Yorks v. Steele, 50 Barb. 405, but parties and privies are estopped by them, Forbes v. Halsey, 26 N. Y., 64; Gwynn v. Hamilton, 29 Ala. 236; Harris v Plant, 31 Ala. 645; Atwood v. Wright, 29 Ala 350. See Hatch v. Bartle, 45 Penn. St., 167; Whitaker v. Wheeler, 44 Ill. 441.

Atkinson & Atkinson for defendant in error. The sheriff is not protected by a writ of replevin in seizing property that belongs to third parties even though the writ describes it specifically. Lyon v. Gorce, 15 Ala. 360; Smith v. Grant, 56 Me. 255; State v. Jennings, 14 Ohio St., 73; Brush v. Fowler, 36 Ill. 53.

Graves, J. Campbell, C. J., and Cooley, J., concurred. Marston, J., did not sit in this case.

OPINION

Graves, J.

The plaintiff in error being sheriff of Wayne county received for service a writ of replevin out of the Superior Court of Detroit in favor of one Samuel Nordheimer and against one Sarah J. Hanlon for a piano. Mrs. Hanlon was staying in Detroit with her daughter Mrs. McDowd, the latter being absent from home. The piano was there and plaintiff in error took it on the writ. At that time it was not in Mrs. Hanlon's possession. The fact was so found, as appears by the record. Mrs. McDowd claiming to be owner brought this action of trover against him, and on the trial he contended that the writ of replevin in the case of Nontheimer against Mrs. Hanlon afforded him complete protection against Mrs. McDowd's charge of conversion founded on his acts in executing that writ. The court decided that the writ was not a protection, and this is assigned as error. At the hearing Hallett v. Byrt, as reported in Carthew, Shipman v. Clark, 4 Denio 447, Foster v. Pettibone, 20 Barb. 357, and King v. Orser, 4 Duer 436, were cited as authority for the position of the plaintiff in error, while Stimpson v. Reynolds, 14 Barb. 506, Clark v. Parkinson, 10 Allen 133, and Billings v. Thomas, 114 Mass. 570, were cited among other cases to support the ruling. Assuming the report in Carthew to be correct, it cannot afford any aid. The ancient action of replevin was a very different remedy from that marked out by our statute, and the distinctions go far enough to hinder the case in question from applying.

The cases from Denio and Barbour are contradictory, and settle nothing, and it is plain that the rule is not there regarded as determined. In Rogers v. Weir, 34 N.Y. 463, the subject was referred to in the court of appeals, and the question was treated as still open. The case in Duer did not profess to decide the point.

On the other hand, the Massachusetts cases cited to support the ruling were not intended to be so understood. This is distinctly shown by White v. Dolliver, 113 Mass. 400. The court there express this dictum: "While the property was in the hands of the sheriff, and he was actually engaged in transferring it to the possession of the defendant, it was in custodia legis, and the officer could not have been disturbed while making the transfer. Hallett v. Byrt, Carth. 380; Sanborn v. Leavitt, 43 N.H. 473; Willard v. Kimball, 10 Allen 211."

Before allowing decisions made elsewhere to have special influence in the case, we should be able to find a correspondence between the action of replevin there and here in respect to those features fitted to affect the judgments of the courts on the question, and we are of opinion that the general scheme and leading properties of the action as defined by statute in New York and Massachusetts permit, if they do not require, a view upon the point before us which is not admissible under our statute. Certainly the decisions in their courts produce that impression.

With us replevin is founded on an unlawful detention whether an unlawful taking has occurred or not, Hickey v Hinsdale, 12 Mich. 99, and it proceeds upon the idea that the property is actually withheld by the defendant and is to be taken by the officer under his process from him, and in order to facilitate its actual subjection to the action the law requires that the process shall describe it. Still it is settled that this description need not be so explicit and exclusive as to supersede recourse to extrinsic help. If with such aid as the plaintiff usually affords, the officer can identify the property, it is sufficient. Farwell v. Fox, 18 Mich. 166. Indeed, it may be laid down that in the great majority of cases the designation in the writ must be supplemented by other means of identification, and the officer must use his intelligence in ascertaining assisting facts and in applying the description to the property intended, and here as well as in serving attachments and executions, where the direction is not to take specific chattels, but only leviable goods belonging to the defendant, there is room for error if not opportunity for abuse. In the case of replevin the wrong goods and of a third person may be taken, and in the other case goods of the leviable sort but belonging to a stranger to the proceeding. Again, in replevin the goods supposed to be indicated may be found in the actual possession and apparent ownership of a stranger to the writ who claims them, and the officer may nevertheless assume to seize them without having required indemnifying security, although the plaintiff, at least without giving such security if demanded, could not insist upon the execution of the writ against them as goods detained by the defendant. Now there must be...