Weinberg v. Conover

By the Court, Whiton, C. J.

We are of the opinion that the judge before whom the trial was had, decided correctly in denying to the plaintiff the right to read in evidence the return of the defendant Conover, to the suit, unless the writ itself was also introduced in evidence to the jury.

The action was trover, and was brought to recover damages for the conversion of certain goods. Conover as the sheriff to whom the writs of replevin had been directed, by his under sheriff, Beck, had taken the goods by virtue of the writs as he was commanded. He had made return of his doings in the service of the writs, and the object of the plaintiff below was, to prove the taking and conversion of the property by means of these returns. These (if the returns could have been separated from the writs) would have established, prima facie, the conversion, as they would have shown that the goods were taken without authority. But by all the rules of evidence, they could not be regarded as admissions of the taking, except in the manner pointed out in the writs. They each admitted the taking of the goods only, “ by virtue of this writ,” and were correctly excluded from the consideration of the jury, till the writs themselves were produced.

After the writs, and the returns to the same, were read to the jury, it is evident that the plaintiff could not recover, unless w© *805 should overrule the decision we made in Watkins vs. Page ( 2 Wis. Rep. 92 ).

In that case we held, that an officer who obeyed the command of a writ of replevin, and took the property described in it, as he was directed, could not be held liable as a wrongdoer. Much learning and argument have been displayed, in the present case, to satisfy us that our decision in the case of Watkins vs. Page is erroneous, but we are of the opinion that its authority should not be disturbed.

It is claimed by the plaintiff in error that in one respect this ■case differs from that of Watkins vs. Page, because the returns to the writs of replevin show that the court which issued the writs, ■did not obtain jurisdiction, for the reason that there was no service of the writ upon the defendant. But it is evident that this fact cannot affect the decision of the questions involved in the case. The court had the power to issue the writs of replevin, and to command the sheriff to serve them, and it is made his duty by statute to deliver the goods which he had replevied by virtue of the writ, to the plaintiff in the suit, upon his executing the bond which the statute prescribes. Rev. Stai, chap. 117, § 8. We do not see how the failure of the sheriff to find the defendant, so as to make a valid service on him, can make him liable, when he has previously only done his duty and obeyed the command of the writ, by.replevying the goods, and delivering them to the plaintiff in the suit upon receiving from him the prescribed bond. For these reasons we must affirm the judgment.

■ Judgment affirmed.