Litchman v. Potter

Charles H. Litchman & another v. Daniel Potter

Litchman v. Potter, 116 Mass. 371 (1874)

Court: Massachusetts Supreme Judicial Court · State Highest Courts
Decided: December 31, 1874
Judges: Endicott
Citations: 116 Mass. 3711874 Mass. LEXIS 117

Headnotes

The value of goods replevied need not be alleged in the writ. A writ of replevin, served by a constable, did not state the value of the goods to be replevied, but the parties agreed in writing on the writ that the value was $225. The ad damnum in the writ was $500. The judge presiding at the trial allowed the plaintiff to amend the writ by inserting $225 as the value of the goods, and overruled a motion to dismiss. Held, that the defendant had no ground of exception, A writ of replevin commanded the officer to replevy “ the goods and chattels following, viz: the contents of a grocery store,” described the store, and stated the person by whom the goods were taken and held. Held, that the description was sufficient under the Gen. Sts. c. 143, § 11, and was not so vague and indefinite as to be bad on demurrer.

Summary

Replevin. The writ, which was served by a constable, directed the officer to “ replevy the goods and chattels following, viz.: the contents of a grocery store, so called, situate on Lee Street in Marblehead, and numbered 3 on said street, belonging to Charles H. Litchman and William T. Litchman, now taken ami held by Daniel Potter.” There was no allegation in the body of the writ of the value of the property to be replevied; but there was an agreement signed by the parties on the writ, that the goods should be valued at $225. The ad damnum was $500. In the Superior Court, upon the return day of the writ, the defendant filed a motion to dismiss on the ground that there had been no legal service of the writ. This motion was granted by Brigham, C. J. The plaintiff then moved to amend the writ by alleging that the property was of the value of $225. The judge thereupon rescinded the order dismissing the action, allowed the amendment, and overruled the motion to dismiss the action ; and the defendant alleged exceptions. The defendant then filed an answer containing a demurrer to the writ, on the ground that the property to be replevied was not sufficiently described. The demurrer was overruled; and the defendant appealed. The case then proceeded to trial, and the jury found for the plaintiff.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Endicott

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Endicott, J.

It is not necessary in a replevin writ to allege the value of the goods to be replevied. Pomeroy v. Trimper, 8 Allen, 398 . Blake v. Darling, ante, 300. If alleged, it may under some circumstances be admissible against the plaintiff as evidence of value; Clap v. Guild, 8 Mass. 153 ; Barnes v. Bartlett, 15 Pick. 71 ; but is not conclusive evidence even on the question of jurisdiction, if the agreement or appraisal establishes the value to be less than twenty dollars. King v. Dewey, 11 Cush. 218 . The agreement or appraisement determines the value for all the purposes of the case. Leonard v. Hannon, 105 Mass. 113 . As the value named in the agreement in this case was less than three hundred dollars, a constable could serve the writ, the determination of the value being preliminary to the service. Gen. Sts. c. 143, §§ 3, 12 ; c. 18, § 61. St. 1872, c. 268. The ad damnum, alleged in the writ to be five hundred dollars, is not an allegation of value; that is determined by the agreement; and it was clearly within the power of the court to allow the amendment in conformity to the fact.

The description of the property to be replevied, though general in its terms, meets the requirements of the statutes, and is not so vague and indefinite as to be bad on demurrer. The officer is directed to replevy the contents of a grocery store. The goods ordinarily contained in such a store are too numerous and varied *374 to be enumerated in detail. The store is pointed out, and the goods are further described as now taken and held by a deputy sheriff as the property of another. This is a sufficient description to inform the officer and to furnish the means of clearly identifying the property; and that it was so identified appears by the agreement of the parties as to the value.

Exceptions and demurrer overruled.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

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Relies on it most ⓘ

Maguire v. Pan-American Amusement Co.91 N.E. 135 (Mass. 1910)
McCarthy v. Ockerman49 N.E. 153 (N.Y. 1898)
Littlefield v. Maine Central Railroad71 A. 657 (Me. 1908)
Fergusson v. Comfort184 S.W. 1192 (Mo. Ct. App. 1916)
Hartford Fire Insurance v. Stevens123 A. 38 (Me. 1924)
Trujillo v. Tucker171 P. 788 (N.M. 1918)

Most recent

National House Furnishing Co. v. Anderson55 N.E.2d 465 (Mass. 1944)
Hartford Fire Insurance v. Stevens123 A. 38 (Me. 1924)
Trujillo v. Tucker171 P. 788 (N.M. 1918)
Fergusson v. Comfort184 S.W. 1192 (Mo. Ct. App. 1916)
Maguire v. Pan-American Amusement Co.91 N.E. 135 (Mass. 1910)
Littlefield v. Maine Central Railroad71 A. 657 (Me. 1908)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

Depth	Case	Cited by
	Clap v. Guild, 8 Mass. 153 (1811)	12
	Leonard v. Hannon, 105 Mass. 113 (1870)	5

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