Van Baalen v. Dean

• Decision Date: 22 April 1873
• Citation: 27 Mich. 104
• Court: Michigan Supreme Court
• Parties: Emanuel H. Van Baalen v. Horace M. Dean and others

27 Mich. 104

Emanuel H. Van Baalen v. Horace M. Dean and others

Supreme Court of Michigan

April 22, 1873

Heard April 11, 1873

Error to Wayne Circuit.

Judgment set aside, with costs, and a new trial ordered.

Trowbridge & Atkinson, for plaintiff in error.

Moore & Griffin, for defendants in error.

OPINION

Graves J.

The plaintiff sued the defendants in replevin before a justice of the peace and recovered.

The defendants then appealed to the circuit court, where the jury, under express instructions so to do, found in their favor; and judgment having been entered on the verdict, the plaintiff now asks a revision of the proceedings on writ of error and bill of exceptions. If the evidence tended to make out a prima facie case for him, the result was wrong. If it came short of that, it was correct. The articles in dispute were pictures, gilt frames, a mirror, a marble slab, and curtain cords and hooks.

The case went to the jury on the sole testimony of the plaintiff and he testified in substance that the articles were in his possession in his dwelling-house in Detroit; that the defendants entered his store and inquired for the goods, and then passed up stairs where he lived, and took them away, whereupon he replevied them in this case. He also testified that at the time of the taking the defendants served upon him a writ of attachment in their favor against George Gifford; that he purchased these articles of Mrs. Gifford, and made the purchase in his business of dealing in second-hand clothing and furniture; that his brother was, and had been for two years, a partner with him in this business, and that the property was paid for out of the partnership funds, but that these goods were separated from others bought of Mrs. Gifford, and sent up stairs into his dwelling, and were mostly intended for his own use; that since the institution of this suit he had sold the pictures in the course of his business, but had kept the remaining articles in his house; that his dwelling was unconnected with the partnership, and was his own. He further stated that the goods were bought by him of Mrs. Gifford at her residence in Detroit, where she had been living with her husband, and that he supposed she was married, and understood she was about to join her husband, who had gone away a few days before.

Upon this evidence the defendants in error claim, first, that replevin was not maintainable because the goods were in the custody of the law under an attachment against George Gifford; second, that the plaintiff failed to show title in himself; and, third, that he failed to show his right to possession, because, if he had any right, it was a joint one with his brother.

I think the evidence tended to make out...