Jenkins v. Ontario

Mr. Justice Bean

delivered the opinion.

This is an action against a municipal corporation to recover possession of an animal alleged to have been wrongfully and unlawfully seized and impounded by its marshal under the authority of an ordinance regulating the running at large of animals within the corporate limits of the city. The complaint, after averring the incorporation of the defendant, the election and appointment of the marshal, the plain tiff’s ownership and right to the immediate possession of the property in controversy, and its seizure by the marshal under the ordinance mentioned, alleges that before the commencement of the action “the plaintiff demanded the possession of said animal from defendant, by then and there demanding possession thereof from its marshal, who held possession thereof at said time,” and who “still unlawfully holds and detains” the possession thereof from the plaintiff. A demurrer to the complaint was sustained on the ground that the action should have *74 been brought against the marshal, and not the municipality, and in this view we concur. The action is to recover the possession of certain specific personal property, and should have been brought against the party having the actual possession. Replevin is a mere possessory action, and Mr. Shinn says: “It is a universal principle of the law of replevin that the action will only lie against the party in possession of the property at the time the action is instituted”: Shinn, Repl. § 164. Mr. Wells and Mr. Cob-bey lay down the same rule: Wells, Repl. § 134; Cobbey, Repl. § 432. And the authorities agree, to adopt the language of Mr. Justice Gary, that replevin lies “only against one from whose possession the sheriff can take the property, and to whose possession it can be returned if a return be awarded”: Richardson v. Cassidy, 63 Ill.App.482; Rose v. Cash, 58 Ind. 278 ; Herzberg v. Sachse, 60 Md. 426 ; Grace v. Mitchell, 31 Wis. 533 ( 11 Am. Rep. 613 ).

It has accordingly been held that the action cannot be maintained against an attaching or judgment creditor for goods attached or seized by an officer under a writ of attachment or execution: Richardson v. Reed, 4 Gray, 441 ( 64 Am. Dec. 77 ); House v. Turner, 106 Mich. 240 ( 64 N. W. 20 ). In the former case, Mr. Justice Metcale, speaking for the court, says: “Though an officer who attaches,and a plaintiff who directs him to attach, A’s goods, on a writ against B, are joint trespassers, and may be sued jointly in an action of trespass or trover, yet they cannot be sued, jointly in an action of replevin. The grounds and incidents of a replevin suit are incompatible with the joinder of the creditor and officer as defendants. The writ of replevin assumes that the goods which are to be replevied have been taken, detained, or attached by the defendant, and are in his possession or under his control; and it directs that they shall be replevied and delivered to the plaintiff, provided he shall give bond conditioned, among other *75 things, to restore and return the same goods to the defendant, and pay him damages, if such shall be the final judgment in the action.” The same principle applies to an action to recover property in the possession of a municipal officer. It must be brought against the party in possession, leaving him, if he so desires, to plead the authority under which he holds it. The complaint in this case shows affirmatively that the property in controversy at the time of the demand and the commencement of the action was in the actual possession of the marshal. It should therefore have been brought against him alone, though in some other form of action the municipality might be liable to the plaintiff for the marshal’s acts. It follows that the judgment of the court below must be affirmed, and it is so ordered.

Affirmed.