Eddings v. Boner , 1 Indian Terr. 173 ( 1897 )

Kilgore, J.

(after stating the facts). The Arkansa statute in force here provides that in an action to recover th| possession of specific personal property the plaintiff may, the beginning of the suit, or at any time before judgment secure the delivery of the property by employing the ancillarl remedies authorized by the chapter on replevin of Man^ field’s Digest. He may go further, and cause the arrest the defendant, by filing a separate affidavit to the effect thi he believes the property has been concealed, removed, or i| some way disposed of to defeat the plaintiff’s action. It ha been determined that the remedy provided by the chapt<| on replevin superseded both the old action of replevin ar detinue. The first, and essential, requisite in such suits that the complaint, affidavit, and order of delivery must col tain a particular description of the property claimed. It wl contended by the appellant, the defendant below, both on ttj trial in the District Court and on the hearing in this coui that the plaintiff could not maintain replevin in this cau| for the want of a particular description of the specific pe sonal property in controversy; and he undertook, by motions, etc., to eliminate from this suit all the articles described in the complaint — the money, for instance — except the waist belt, pocketbook, and purse, each valued at 50 cents, on the theory that money could not be recovered in an action in re-plevin. The appellee, plaintiff below, answered this conten-ion by amending his complaint and setting up that the noney described therein was contained in a canvas waist aelt. There was no further exception for the want of full lescription; so this court must conclude that the description )f the belt was sufficient, though it is quite meager and un-lertain, and would probably have been held by the court be-ow to be defective if exception to it had been specially irged.

Money. I Cl0El‘blnCél'DlO)l

The contention of appellant’s counsel that money can-ot be the subject of an action of replevin is not entirely ound. Replevin may be maintained for the recovery of loney the same as for any other personal property. • The i ifficulty in such cases arises on a question of a description nd identification of the money. Cobbey, Repl. § 72, says: Money is not the subject of an action of replevin, unless it s marked or designated in some manner, so as to become aecific as regards the power of identification. ” This is the eneral rule, and it applies as well to every other character ü personal property the recovery of which is sought in an jtion of replevin. There is much more difficulty, of course, describing coin or currency specifically or for identifica-on and for segregation from other money and currency of ce denomination than in the instance of other personal fects. After describing the money and currency as set out the foregoing statement, appellee alleges that the money, pocketbook, and purse, were all contained in one waist fit made of ducking, of the value of 50 cents, at the time .e same passed out of his possession and into the possession of the appellant. There is no specific description of th coin and currency in the plaintiff’s complaint, affidavit an order of delivery that could possibly lead to the identific tion of those articles, except that they are contained in waist belt made of ducking, and for this package he seels recovery in this suit. There seems to be no doubt that tb suit can be maintained on the theory of the plaintiff amended pleadings and process. In Hamilton vs Clark, 2 Mo. App. 428, the rule is laid down as follows : “Money not the subject of an action of replevin, unless it is marke or designated in some manner so as to become specific as r gards the power of identification; such as being in a bag < package.” In Skidmore vs Taylor, 29 Cal. 619, it is said th replevin is the proper remedy to recover a package of go. coin sealed up in a leather bag. In Sharon vs Nunan, 63 Cal. 234, it was held that money sealed up in a canvas ba: marked with a tag, on which was written the name of tl owner, and deposited in a vault of a safe deposit compan; was the subject of replevin. In Griffith vs Bogardus, 14 Cal. 410, there was a seizure by the sheriff, under a writ again M., of $1,800 in coin, a portion of a large amount of mom in a safe, as the property of the defendant, and it was put a bag. The plaintiff then claimed the money as his, M ing present and not objecting, and the court held t' amounted to a segregation of the $1,800 from the mass coin in the safe, so that replevin could be maintained for tl identical coin. The rule seems to be that in all such cas| the plaintiff must recover the specific property for which sues. At the same time he is entitled to a personal ju< ment against the defendant for the value thereof on recoveij enforceable by execution, in case of failure to secure the cj livery of the property in controversy.

Money. Description.

At the October term, 1895, of said court, and befoj the trial began, the appellant moved to vacate the order arrest, on the ground that the plaintiff had not executl ond to indemnify the defendant, as required by section 5575, fansf. Dig., before the order of arrest was complied with by he marshal. This motion was struck out by the court, on lotion of the appellee, and the court refused to cousider the ame, on the ground that the appellant had answered m the ase, and had given bail and been discharged from arrest, ection 5574 of Mansfield’s Digest provides for an order for íe delivery of property claimed to belong to the plaintiff in iplevin, and for the arrest of the defendant. Section, 5575 rects that the order shall not be complied with by .the leriff unless there has been executed in his presence, by íe or more sufficient sureties of the plaintiff, a bond to the fiendant to the effect that the plaintiff will duly prosecute Le action, that he will perform the judgment of the court erein by returning the property if a return shall be Ljudged, and by paying such sums of money as may be judged against him in the action, not exceeding double the lue of the property, and the costs' in the action. The bond quired by this section of the statute was not given by the aintiff, and no effort was made to comply with the law. Wilson vs Williams, 52 Ark. 360, 12 S. W. 780, the sheriff was ed for the value of a certain property which he had taken >m the plaintiff as defendant in an action of replevin under order of delivery. He had taken a bond from the plain- : in the replevin action before complying with the order of ' zure, but without any sureties thereon. It was held in it case that a bond with sureties, as required by law, was ¡ential to the lawful seizure of the property, and that, in > absence of such bond, the sheriff seizing the property ed without legal authority. The order for the arrest of defendant rests upon the same authority, and if there is r difference in the rule requiring the execution of the bond i condition precedent to the arrest of the defendant it ild be considered more exacting than that relating to the ¡ure of his property.

Arrest. Bail tond‘ Answor. Es-toppel. Ball bond. Object.

We cannot assent to the doctrine that the appella: waived any fundamental error in the original proceedii which led to his arrest by answering in the case and givii bail to secure his discharge from custody, inasmuch as tl statute, he insisted, had not been complied within a materi particular. It presses the doctrine of waiver too far to ho that, by doing the thing necessary to obtain release from u lawful detention, appellant estopped himself to aver the u lawfulness of such detention and to move to annul the i •sufficient process under which, upon surrender by his ba he might again be held, if not vacated. The motion to vaca the .order of arrest should have been sustained, and the ( fendant discharged.

On the finding of the verdict by the jury for the pellee, the court below entered up a judgment against t| appellant and. the sureties on his bail bond for the value the property in controversy, and the cost of such suit. T is not authorized by the law. When the defendant has h arrested in a replevin suit, he is entitled to his discharge giving bond, with sufficient sureties, conditioned that shall abide the order of the court in such action. Man| Dig. § 5577. This bond is regarded by the authorities • intended only to secure the presence of the defendan court. If he should fail to appear and abide the order judgment of the court, and the order of arrest has not b vacated when judgment has been obtained, execution ma; issued against the body of the defendant. Id. § 284. return of “Not found,” upon an execution against the b of the defendant, placed in the hands of the marshal wit' 20 days after it might have been issued on the judgm shall be necessary to fix the liability of the sureties, wh| shall be to pay the amount of the judgment and costs. § 295. When the liability of the bail is fixed, as provided] the statute, the plaintiff can proceed against them only i: separate action. Id. § 296. In the case of Chandler yrd, 1 Ark. 152, the Supreme Court of that state held that e sureties of the defendant on a bond given by him in a pias in detinue, under the statute, are his bail, and are sponsible for his personal appearance, and not answerable all events for the delivery of the property sued for. The ovisions of the statute at that time on the subject are out the same as are now found in the law of replevin in ansfield’s Digest. In Duncan vs Owens, 47 Ark. 388, 1 S. W. 698, this question was determined by the supreme court that state. It discusses sections284, 295, and 5577, Mansf. g., and says, in effect, that the sureties on a bond execut-to the sheriff for the release of a defendant arrested on a Dias in replevin are not liable for the judgment against the fendant, unless an execution against the body of the de-idanthas been issued and returned “Not found.”

The appellant complains that the court erred in charg- £ the jury to the effect that if a proportion of the property s, soon after its loss by appellee, in the possession of the IDellant, the burden of proof would be upon him to show ,t he only received a portion of the property contained in : belt when it was lost, and that he must make this proof a preponderance of the evidence, or he wbuld be charge-e with all of it. The appellant denies that he found the t or money, or ever had possession of any portion of it. made the issue that the money traced to him had been in possession long prior to the appellee’s loss, and was not refore to the amount of a cent a part of that which was ;. The proof, on the other hand, tended convincingly to w that the appellant, prior to the loss of the belt and uey, did not have any money, and that he and his minor found the belt containing the appellee’s money. The y, by their verdict, found that appellant, soon after the ;, was in possession of some of appellee’s money. By ; finding they swept away all the appellant’s contention; and, finding that the appellant had in his possession a por tion of the money lost, the jury, under the peculiar state o the proof in the record, cbuld not have found otherwise tha; that appellant got all the money. The court may hav erred in its charge, but as the vice consisted in imposing burden upon appellant which he had voluntarily assumed and in telling the jury, if they found a certain fact, to mak an inference therefrom as a matter of law, which was th| only inference that the jnry could properly have made fro: this fact in connection with other facts in evidence, t error is not reversible.

Instruction. Burden of proof. Harmless error. Exclusion of testimony. Exception. Testimony. Declaration of party.

The second error assigned complains of the action the court in excluding the testimony of one Morgan in rel<| tion to a conversation with the appellant, in which he mac declarations as to his financial ability prior to the loss of tl property in controversy. As the record does not show a| exception reserved to the action of the court, it will not considered. The appellant got leave to file a statement Morgan’s testimony, but made no exception to the ruling the court excluding it.

The third error assigned is based upon the action the court in sustaining the objection to testimony as to ce| tain statements of appellant pertinent to the issue, on tl ground that no proper predicate had been laid for the pul pose of impeachment. The declarations of a party to a sul prejudicial to his interest may be put in evidence, withoi laying the predicate necessary to impeach a witness who h| no interest in the case.

We have found that the ancillary proceedings in tl case must fail because of fundamental errors therein, aJ that a judgment against the sureties on appellant’s bail bo:| was unauthorized by law. Now the question is, can we form and affirm the personal judgment against the appella| rendered below for the value of the property, inasmuch aere is no reversible error in the trial on the merits? In an otion to recover possession of personal property, the plain-ff may avail himself of coercive remedies provided by the ¡¡atute on replevin, or he may bring an action for the re-ivery of the property without resorting to such remedies, n such case, if the plaintiff recovered, he would be entitled ) a personal judgment against the defendants for the return 0 the property, or its value, with damages for its detention, id to execution, if necessary. Mansf. Dig. § 5181. In Larkey vs Tillman, 40 Ark. 551, it is held that one wrong-illy obtaining property, and refusing to deliver it on de- and, may be sued in replevin, though he has parted with Le possession at the time of the suit. The court in that use say that this is the common law as to detinue, and it iplies in all states where compensation in place of the pro ' irty can be given in replevin, which thus becomes a sub-itute for detinue. In Hamilton vs Ford, 47 Ark. 245, it is dd that, when the order of delivery in an action of replevin quashed, the case stands as an ordinary action of detinue, id may be treated as such. If the court below had vacated e order of arrest for the want of a bond to indemnify the fendant, the order of delivery would have gone down with e capias proceedings; but the case would have still been in urt for adjudication on its merits. The jury determined e value of the property involved, and returned a verdict c the plaintiff, upon which judgment was entered below, e are of opinion, therefore, that the personal judgment adnst the appellant, Eddings, should be affirmed, and that 3 judgment against the sureties on his bail bond be re-rsed, and the proceedings dismissed as to them.

,Judgment. Valid in par Judgment. Affirmed in part. Lewis, J., concurs.