Talbot v. Magee

Smith, P. J.

This is an action of replevin commenced before a justice of the peace to recover the possession of a mare and colt. In the circuit court, where the case went by appeal, there was'a trial and judgment for the plaintiff, from which defendant appealed.

It appears from the record before us that" the defendant, Magee, had recovered judgment against one Jackson and another before a justice of the peace; that upon that judgment the justice issued an execution to the constable who levied the same upon the mare in dispute, which was then heavy with foal. After the levy, the constable being sick, turned the mare over to Magee, the plaintiff in the execution, for safe keeping and proper care, she being thin in flesh and about to bring forth a colt; that while the mare was thus in the *351 possession of the execution plaintiff, the plaintiff in this action, Talbot, who made claim to her-under a previous purchase from Jackson, one of the execution defendants, delivered to the constable the written notice provided for in section 6311, Revised Statutes; that thereupon the constable took from the execution plainiff a bond conditioned as the above cited section of the statute requires; that the constable then proceeded to advertise for sale the mare and colt, which had been foaled while in the custody of the constable’s bailee, the plaintiff in the execution; that after these proceedings had taken place the plaintiff brought this action against the execution plaintiff for the recovery of the possession of the mare.

Both at the trial before the justice of the peace and in the circuit court, the constable, Haverly, made an application in writing verified by affidavit asking to be made a party defendant, which application was refused in both courts. The action of the circuit court in refusing to make the .constable a party defendant is assigned as error. The statute authorizes a justice to add new parties as coplaintiffs or codefendants. R. S., sec. 6225. It is proper to join an officer and his custodian as defendant in a replevin suit. Cobbey on Replevin, sec. 441; Tuttle v. Robinson, 78 Ill. 332 . And so it has been ruled that when two parties are connected with the detention of property it is proper to join them as defendants. Deyoe v. Jamison, 33 Mich. 94 . And so, too, it has been ruled that replevin will lie against one who has control of property although it is in the hands of another. Flatner v. Good, 35 Minn. 395 .

As the action of replevin sounds in tort, the person who actually detains the property should be made the defendant (Cobbey on Replevin, sec. 431); though where one person acts in good faith as the agent of another, the courts-have sometimes allowed the princi *352 pal to be made a defendant. The defendant must have the actual or constructive possession of the property. Any person having the unlawful possession of personal property belonging to another is the proper party from whom to replevy it, whether he claims as owner, agent, custodian, trustee, administrator or in another capacity. But it will not lie against one holding merely as a servant of another and claiming no interest in himself. To be protected, the agent should state on demand the character of his possession and for whom he is acting. Cobbey on Replevin, secs.431, 432; McDougall v. Travis, 24 Hun, 590 ; Berghoff v. McDonald, 87 Ind. 549 .

It appears from the evidence that, at the time plaintiff called on defendant to demand the possession of the mare, the latter stated to the former that the mare had been levied on by the constable and left in his care and that, when the note upon which the justice had rendered the judgment was paid, he could have her.

The defendant has cited a number of cases which assert the rule to be that, when an officer wrongfully levies on property of a stranger, in an action of replevin for the recovery thereof, the officer is the proper party defendant. Ralston v. Black, 15 Iowa, 47 ; McMillan v. Larned, 41 Mich. 521 ; Esty v. Love, 32 Vt. 744 ; Richardson v. Reed, 4 Gray, 441 . Even though the property so levied upon be left with a third person as bailee or for safe keeping, since such possession or custody is deemed that of the officer. Wear v. Sawyer, 91 Mo. 348 ; Mitchell v. Hinman, 8 Wend. 667 ; Dillenback v. Jerome, 7 Cow. 294 ; Bradley v. Gamelle, 7 Minn. 331 .

While we think that the constable should have been made a party defendant, yet we would not be inclined to disturb the judgment on account of that omission, if we could see from the record that the *353 defense, which we think was open to the constable in the case, had he been a party, had been permitted to be made by the defendant as his bailee and custodian of the property. The defendant, in his capacity as bailee, had the right to show that he was the constable’s bailee and custodian, and that such constable had taken possession under the execution against the execution defendant. He had also the right to show that plaintiff had not the title or right of possession, and to that end to prove title in the execution defendant or any other stranger. The showing himself to be the custodian of the property under the constable was a sufficient connection with the title of the defendant to authorize him to make any defense the constable could have made, since he stood in that officer’s shoes. Tuttle v. Robinson, 78 Ill. 332 .

Now, inasmuch as it is not disputed that the plaintiff gave the constable the statutory notice of his claim to the property, and that the former took from the latter a proper bond of indemnity, it must be ruled that the plaintiff, in consequence thereof, is barred of his. right of action in replevin against the defendant, the constable’s custodian of the property. R. S., secs. 6311, 6312, 6313; Palmer v. Skenkel et al., 50 Mo. App. 571 ; Hawk v. Applegate, 37 Mo. App. 32 ; Bradley v. Holloway, 28 Mo. 150 ; Dodd v. Thomas, 69 Mo. 364 .

It necessarily and inevitably results from this that the trial court erred in refusing to instruct the jury at the request of the defendant to the effect following, to wit, that the levy of the constable upon the mare, and the taking of her by him, placed her in his possession, and she remained in the constable’s possession, although he may have had another to care for and feed her; that after the constable levied upon and took possession of said mare, the plaintiff gave the notice to *354 the constable of his claim of her as shown in evidence and admitted by him, and that the plaintiff, in the execution thereupon, to wit, the next day, June 2, 1893, gave to the constable an indemnifying bond as required by statute, which bond was accepted and approved by said constable on said June 2, 1893, then plaintiff was estopped to bring replevin for said property, and the finding should be for defendant.

The plaintiff’s first and second instructions being repugnant in theory to those of the defendant, which we have just noticed, should have been refused.

As to the colt which was foaled after the levy and while the mare was in the custody of defendant, it was as much in the possession of the constable as the mare, and the-rights of property therein are not different from those in the mare. Edmonston v. Wilson, 49 Mo. App. 491 ; White v. Storms, 21 Mo. App. 288 ; Stewart v. Ball, 33 Mo. 156 .

We think the case was not submitted to the jury under proper instructions, and we shall therefore reverse the judgment and remand the cause.

All concur.