text:
    Pomeroy vs. Crocker and others.
    1. Replevin — Execution. — Where property has been replevied and delivered to the pla-intifi and the defendant prevails in this action, and, waiving a return of his property, takes judgment for the value of the property replevied and damages for its caption and detention, with costs, execution cannot issue against the body of the plaintiff to obtain satisfaction of such judgment.
    2. Same — Shebiff. —Execution on a judgment so rendered, fair on its face, will justify the officer to whom it is directed in arresting and detaining the body of the plaintiff according to its mandate, in the absence of any notice of its invalidity (Knowlton, J., dissenting); but the party at whose instance it was issued, as well as the clerk of the court who issued it are answerable in trespass for all acts done under such writ.
    (4 Chand., 174.)
    ERROR to the Circuit Court for Kenosha County.
    Action for false imprisonment brought by Pomeroy against Crocker, Turner and Parker.

      Tbe defendants pleaded separately special pleas, justifying tbe alleged imprisonment, in substance that an action of re-plevin was commenced in tbe circuit court for Racine county by Pomeroy against Turner and one Strong, to recover four hundred and fifty bushels of wheat : that under the process in that action the wheat was taken and upon the plaintiff Pomeroy giving bond it was delivered to him ; that upon the trial of the replevin suit a verdict was found for the defendants therein, and assessing the value of the property so replevied and delivered at $j309.50, and the defendants’ damages at $10.83, whereupon the defendants waived, pursuant to the statute, a return of the property and perfected judgment for the said value, and damages and costs ; that this judgment remaining unsatisfied, the said Turner and Strong, as such judgmeut creditors, sued out a writ of capias acl satisfaciendum on said judgment, to the sheriff of Kenosha county, the defendant Orocker, which was issued by the defendant Parker as clerk of the court; that by said writ the said sheriff was commanded to take the body of said Pomeroy, to satisfy said judgment and costs; that he refusing to pay said judgment, was taken and imprisoned to answer the exigency of said writ. The plaintiff demurred to the special pleas of justification, and judgment was given on such demurrer for the defendants, and each defendant having-pleaded separately, and by different attorneys, for separate bills of costs, and the plaintiff Pomeroy sued out this writ of error.

      J. B. Sharpstein, for plaintiff in error.

      Stoddard & Pettit, F. S. Lowell and A. G. Ohatfield, for defendants in error.
   KNOWLTON, J.

This suit was brought in the circuit court of Kenosha county by the plaintiff in error against the defendants in error for false imprisonment. The defendants appeared and specially pleaded in bar of the action, a judgment which had been duly rendered against the plaintiff in an action of replevin in favor of of tbe defendant, Turner, and one William Strong, Jr., and justified the talcing and imprisoning of the plaintiff by virture of a capias ad satisfaciendum issued upon said judgment. To these pleas the plaintiff demurred. The court overruled the demurrer, and rendered judgment against the plaintiff for costs. He removed the cause into this court by writ of error.

That the case may be the better understood, it is well to state that the judgment in replevin, as pleaded, was rendered in favor of the defendants in that action for the value of the property then in controversy, and for costs, they electing under our statute to take such judgment, instead of the judgment for a return of the property which had been delivered to the plaintiff on the writ of replevin. Parker was the clerk who issued, and Crocker the sheriff who executed the ca. sa.

I take the rule of law under our statute and constitution to be, that the party in whose favor a judgment is rendered for damages as a requital for a tort committed by the party against whom such judgment is rendered, may take the body of the person against whom such judgment has passed, and imprison him.

I also hold that whenever damages are given and costs awarded in such judgment, that the party obtaining such judgment is entitled to like final process for enforcing payment or satisfaction for the costs, as he is for his damages, such costs being only a necessary incident to the judgment for damages.

Another position in my opinion equally sound is this: That, as our statute stands, no person can be imprisoned on a judgment rendered against him upon any contract, express or implied; nor when by mere operation of statutory provision judgment passes against him; he in respect thereof not having committed any tortious act; as to the party in whose favor such judgment was rendered.

By R. S., ch. 119, sec. 40, it is declared that “every judgment rendered in an action of replevin, whether in favor of the plaintiff or defendant, for any damages or costs, or for any other sum of money, shall be docketed in the same manner, and shall have the like effect as a charge upon the real estate and chattels real of the party against whom it is recovered as judgments in personal actions.” Now I take it, that if judgments in replevin for any sum of money are to have like effect as a charge upon realty as other judgments in personal actions, that then that charge must be discharged or obliterated in the same way that judgments in personal actions are, otherwise (upon the hypothesis that legislation went no further), the charge would be of no earthly use, as satisfaction could never be obtained. The charge would remain, but only an eyesore to the party in whose favor it stood; while at the same time it would be a consoling balm to the party against whom it rested. I am not disposed to give statutes a construction that would result injuriously to community, and which could only rest upon the bosom of absurdity. However, we are not left in the necessitous condition of seeking a mode of enforcing a judgment by the elasticity of construction. By R. S., ch. 102, sec. 26: “Whenever judgment shall be rendered in any court of record, for any debt, damages, sum of money, or costs, the party in whose favor such judgment is rendered, upon filing the record thereof, and within two years thereafter, may have execution to the sheriff or other proper officer, to collect the amount of such judgment.” Sec. 28 of the same chapter reads, “ such execution may be either: 1. Against the goods and chattels, lands, tenement and chattels real of the party against whom the judgment was recovered. 2. Against the body of such in cases where executions against the body are allowed by law.”

Suffice it to say that our law has not provided that execution against the body should go upon judgments in replevin, like the one at bar. It is however provided by statute, as we have just seen, that execution may in such cases, go against the personal property, lands, tenements, and chattels real of the party against whom judgment is rendered.

As this mode of obtaining satisfaction is provided upon the principle that when a right and a means of enforcing that right are given by statute, which are new, or did not previously exist at common law, the statute mode of enforcing that right must, alone be pursued ; and that every means, not expressed in the statute, is excluded as effectually as though express negative words were to that end used. Now that peculiar judgment given in this action of replevin could not have been obtained at the common law, but only by virtue of the statute. It was therefore a statutory right, and the party taking it should be content with the remedies by statute provided for the enforcement of that right. It is idle to say that the party may have any final process that the common law gave, for obtaining satisfaction of a judgment rendered in accordance therewith. The reason is, that the final process is and must be applicable to the judgment, and not having a judgment at the common law, of course no right could exist to use a common law writ to enforce satisfaction.

But it is said that the circuit courts of this state are by statute authorized to devise new writs when it is necessary to carry into effect their judgments. But this granted, does not help the matter, for the obvious reasons that the ccc. sa. used, was an old, and not a new writ devised by the court. But the party made use of a writ devised in olden times. Again, the legislature has, as has been already shown, provided what kind of execution might go on such judgment; and that being done, the court is not at liberty to devise a different, or any writ, because it does not become necessary for the court to do so in order to carry into effect its judgment.

That the action of replevin under our statute is a tort action must, I think, be conceded by all who take the trouble to read the first and second sections of chapter 119 of the revised statutes. The language is : “ Whenever any goods or chattels shall have been wrongfully taken, or shall have been wrongfully detained, an action of replevin may be brought for •the recovery thereof, and for the recovery of the damages sustained by reason of such unjust caption or detention, except in tbe eases hereinafter specified.” Sec. 2. “Whenever any person might maintain an action for any personal property wrongfully taken, such person may maintain an action of re-plevin for such property."

Now suppose it be conceded that the plaintiff recovering judgment in any tort action might take the body of the defendant in execution, it would by no means follow that, if by statutory provision the defendant might have judgment for a sum of money, besides costs against the plaintiff in the same action, in case he, the plaintiff, failed to maintain his action, that therefore such defendant might take the body of the plaintiff in execution on his judgment. In the former ease, the plaintiff would be entitled to take the body of the defendant, because the defendant was convicted of committing a tort. In the latter, the judgment would have no such basis, but would have its basis on statute law. This being the basis, it could not be said that the judgment was founded upon a tort, committed by the party against whom the judgment was rendered. An individual has a legal right to commence an action of replevin, and by exercising this legal right he cannot, in any just sense, be considered a wrongdoer. Sec. 33 of this replevin act reads as follows: “ The defendant, whenever he shall be entitled to a return of the property replevied, instead of taking judgment for such return as above provided, may take judgment for the value of the property replevied, in which case such value shall be assessed by the jury on the trial, or by a writ of inquiry as the case may require.”

I am of opinion that the decisions of courts as to the imperious rights of parties to take executions upon judgments rendered pursuant to common law, have no bearing upon the case now under consideration; but that our statute controls the case. The 29th section of the replevin act, cited by the counsel for the plaintiff in error, is not, in my opinion, apposite to the question presented for discussion.

The execution provided for in that section is, when the plaintiff in the action of replevin recovers judgment upon the whole record, but the property specified in the declaration has not been replevied and delivered to him. The case at bar presents no feature of that kind.

I think the circuit court erred in overruling the demurrers to the pleas, and that the judgment should be reversed as to all the defendants. The sheriff is by 'no means brought within the rule that a ministerial officer is completely protected for acts done by him under process fair upon its face and nothing appearing therein to apprize him that the court from which it emanated had no authority to issue such process. So far as any statement of facts could invest a person with a knowledge of court authority in the premises (as I understand the case), this officer was fully informed by the contents of the writ. The writ containing the facts upon which the law rested, the sheriff was as much bound to know it as any other person. If he chose to disregard the law, under a knowledge of the facts thus conveyed to him, he should be held responsible for the consequences arising therefrom.

The rule of protection above mentioned is based on sound reason; and such being the case, I think it absurd to hold that every ministerial officer is, by intendment of law, incapable of knowing that he ought not to execute process to him delivered unless there is stamped upon its face in legible characters, “ The court from whence this writ emanated had no authority to issue it.” I will not, however, pursue this inquiry further, as there is not a majority of the court agreeing with me upon this point.

The judgment as to the sheriff (Crocker) must be affirmed, and reversed as to the other defendants.

The cause must be remanded for further proceedings in accordance with this opinion.

Judgment accordingly.


source: Caselaw Access Project

author: Kn'O'wxton, J.

license: Public Domain

text:
    Kirby vs. Martin.
    1. Appeal. — The amount of the recovery in justice’s court exclusive of costs is the test by which to determine whether the remedy of the defeated party is by appeal or certiorari, and in no case can a party resort to either at his election.
    2. Same — Replevin.— In an action of replevin, the amount of the recovery which is to determine whether it can be reviewed by appeal or certiorari is the value of the property and the damages found, if any, exclusive of costs. Inman v. Gower, ante, 152.
    (4 Chand., 91.)
    ERROR to the Circuit Court for Rock County.
    The case is stated in the opinion of the court.

      Matt. H. Carpenter, for plaintiff in error.

      Wrn. M. Crozier, for defendant in error.
   Kn'O'wxton, J.

This was an action of replevin brought before a justice of the peace of Rock county by the plaintiff in error, for the recovery of a horse valued at forty dollars. The justice rendered judgment in favor of the plaintiff, and found the value of the horse to be forty dollars, but assessed no damages, and entered the proper order for the delivery of the horse to the plaintiff.

The defendant, by writ of certiorari, removed the cause to the county court. The plaintiff objected to the jurisdiction of the court, on the ground that the cause could not be removed to said court except by appeal, as the value of the horse recovered was over fifteen dollars. The county court overruled the objection, retained the case, and reversed the judgment of the justice. Prom this judgment, error is brought to this court.

It is clear, that under our statute two remedies for the removal of causes, like the one before the court, to the county court, do not exist. It is either by appeal, or by a writ of certiorari. In the case of Inman v. Gower, ante, 152, this question was virtually settled. In that case, the recovery was $15, value of the property, and six cents damages ; and this court held that an appeal lay to the county court. Inasmuch as an appeal and certiorari cannot both be had in this case, the recovery being more than fifteen dollars, an appeal was the proper and only remedy. The judgment must be reversed.

Judgment reversed.


author: Larrabee, J.

text:
    Streeter vs. Frank.
    Justice’s Cotjet — Process.—Whenever the statute prescribes a form for any writ, that form must be strictly followed, especially by justices of the peace.'
    (4 Chand., 93.)
    ERROR to the County Court for Jefferson County.

      Frank brought an action of replevin against Streeter for the wrongful taking and detention of certain personal property, and Streeter who was a constable, justified such taking and detention under an execution issued on a judgment rendered in justice’s court against Frank and in favor of one Cole, and in his hands as such officer.

      After the plaintiff had rested his case the defendant offered in evidence the execution upon which he relied, and it appeared that the words found in the statutory form “ excepting such as the law exempts,” were omitted from the execution. The plaintiff’s evidence showed that the property seized was claimed by him as exempt, and tended to show that it was exempt."
    The plaintiff objected to the execution on account of the omission of the words “ excepting such as the law exempts,” and the court sustained the objection. The plaintiff had a verdict and judgment, and the defendant sued out a writ of error.

      T. & J. Prentiss, for plaintiff in error,
    argued that the statute gives no form for executions issued from courts of record, and is merely directory in giving the form of a justice’s execution ; it does not say that it shall be in that form, but that it may be. R. ;S., ch. 88, § 190. A substantial compliance with what the law directs in an execution is all that is necessary. 2 Ala., 68; U. S. Digest, 741, § 69; Rev. Stat., ch. 100, § 19.

      Mall & Newhall, for defendant in error,
    argued that the execution was not good; that it must follow the statute except as to verbal and literal variances, and if it materially vary from the forms, prescribed by statute, it will not protect the officer. 1 U. S. Dig., 10, § 285 ; 2 id., 815, § 2; 10 Mass., 856; 8 id., 198 ; 11 id., 276 ; Oowen & Hill’s Notes, 1007-8 ; Ohitty Con., 693 ; R. S., ch. 88, § 187-9.
   Larrabee, J.

"We affirm this judgment on the sole ground that the execution under which the defendant Streeter justified, was not in conformity with the statute. Whenever the statute prescribes a form for any writ, that form must be strictly followed, and certainly by justices of the peace. We do not decide any other point in the cause.

Judgment affirmed.


author: Howe, J.

text:
    Bicknell and another vs. Tallman.
    1. Court Commissioner — Transfer of Case. — A court commissioner has no power to make an order transferring a case from the county court to the circuit court of the same county on the ground of the prejudice of the judge of the former court.
    3. Promissory Note. — A person who has no interest in a promissory note, cannot maintain an action thereon.
    (4 Chand., 95.)
    ERROR to the County Court for Bode County.
    Assumpsit on a promissory note, against the makers, Edwin and Charles Bicknell, by Tallman as indorsee thereof. After the defendant had pleaded the general issue, upon petition alleging as ground therefor, that the judge of the county court ■was prejudiced against them, etc., they applied to a court com missioner for an order transferring the cause to the circuit court of the same county for trial. The court commissioner, after hearing counsel for the parties, granted the order as asked for. At the next term of the county court the cause appeared on the calendar of causes for trial, and the defendant’s counsel moved to strike it off on the ground that it had been transferred to and was then pending in the circuit court, but the court denied the motion, and when the cause was reached in its order proceeded to try the same, disregarding the order so made by the court commissioner. After the note had been given in evidence, the defendant offered to prove by one Parker, that the plaintiff at the time of the commencement of the suit had not, and had never since had, any title to or interest whatever in the note sued on. Objection being made, the court excluded the evidence and the plaintiff had a verdict and judgment for the amount of the note. The defendants brought error.

      Matt. H. Carpenter, for plaintiffs in error,
    contended that the court commissioner had power to transfer the case from the county court to the circuit court for the cause stated, and that the order of the commissioner divested the county court of jurisdiction to try the case. R. S., ch. 95, § 1; Laws, 1850, ch. 53 ; R. S., ch. 131, § 5. That the court erred in excluding the evidence offered as to ownership of the note. Badger v. Jones, 12 Pick., 371.

      Chas. H. Parker, for defendant in error.
   Howe, J.

The court commissioner of Rock county made an order transferring this cause from the county court to the circuit court of Rock county by reason of alleged prejudice in the judge, notwithstanding which the county court proceeded in the cause to give judgment, and the first question'presented upon the record is, whether the commissioner had power to make such an order.

The office of court commissioner is one created by statute, and he has no powers but what are conferred. We are all convinced that no such power ought to be conferred by the legislature upon that officer, and we therefore feel assured that no such power has been conferred.

But upon the trial, the defendant offered to prove by a witness called upon the stand by the plaintiff, that at the time of the commencement of the suit the plaintiff had not, never since has had, and has not now any title to or interest whatever in ” the note upon which the suit was instituted. This testimony was objected to and overruled. This offer was very broad, as I should infer (from what was said upon the argument), much broader than the defendant could comply with.

But we are not permitted to rest upon any such interested inference. Very likely, as was argued by the defendant in error, the possessor of the promissory note who has any interest therein may maintain suit upon it. But the defendant offered to show that plaintiff had no interest whatever in the note sued upon. If the fact was so, he could not be the rightful owner of the note. Payment to him would be no discharge against the right owner. Judgment recovered by him would be no bar to a subsequent suit by the right owner. And we think such proof ought to have been received, and that the judgment of the county court must therefore be reversed.

Judgment reversed.


author: Knowlton, J.

text:
    Manley vs. Manley.
    1. Divorce. — Jurisdiction.— The circuit courts of this state have jurisdiction.under the revised statutes, to make decrees divorcing parties from the bonds of matrimony, although the guilty party has never resided in this state, and although the acts constituting the cause for divorce were committed within a foreign jurisdiction. HuVbell v. JTubbell, 3 Wis., 662; Gleason ®. Gleason, 4 id., 64; Shafer ». Bushnell, 24 id., 372.
    (4 Chand., 96.)
    APPEAL from the Circuit Court for Columbia County.
    The case is stated in the opinion of the court.

      J. G. Knapp, for appellant,
    cited 1 Smith Ch. Pr., 154'; Daniels Ch., 514; Mower v. Mower, 1 Bro. Ch., 388; Oglevie v. Hearn, 13 Ves., 568 ; Henderson v. Meggs, 2 Bro. Oh., 127; James v. Dore, 1 Dick., 63; Lawlins v. Lawlins, 6 Monr., 70; Brown v. Wood, 6 J. J. Marsh, 11; Jermain v. Langdon, 8 Paige, 41; 3 Eccl. Rep., 406, 415, 416, 421, 428, 308; 8 Mass., 383 ; 4 Eccl. Rep., 534; 2 Blackf., 207; 1 Edward’s Ch., 40; 10 Ohio, 27.
   Knowlton, J.

The appellant filed his bill for divorce, a vinculo on the 5th day of February, 1851, in the circuit court of Columbia county. On the 25th a subpoena was issued, returnable on the third Wednesday of March thereafter. On the 19th of the month last named, the writ was returned endorsed by the sheriff “ defendant not found.” An order was signed by the judge of the circuit court of Columbia county for publication of notice for an appearance upon the 1st day of July, 1851. This notice was duly published in the River Times, a weekly newspaper published in the county above named. Of this publication the requisite proof was made. On the 26th September, 1851, the testimony on the part of the plaintiff was taken in open court, and the cause set down for hearing on the bill and testimony, and thereupon the court ordered said bill dismissed at the costs of the complainant, for the reason that the said circuit court had no jurisdiction over the person of th& defendant, she never having been a resident of this state. From this decision of the circuit court the complainant appealed to this court.

The only question presented upon this appeal for consideration is, whether the circuit courts of this state can legally, by decree, dissolve the matrimonial tie in cases where the defend ant is not and never has been a resident of this state, notwithstanding all the requirements of the statute as to such cases have been complied with. A majority of this court are of opinion that such decree can properly be made. I take it that a decree a vinculo operates upon and directly affects the marriage contract in its solemnizing form. And that whilst it thus acts and operates directly, it indirectly affects the parties previously bound thereby. This is the precise effect of a judgment at law when the estate of a nonresident is attached, as an incipient step in the case, the owner of which has never been served with process, appeared or brought into court in any way other than by the mere newspaper publication of notice to him. Yet it has been held again and again that such judgments were valid and binding as to the property attached, although sufficient to entirely satisfy the contract debt. Such a judgment, therefore, directly affects and operates upon both the contract and property.

If courts possess the power to enforce a contract under sucb circumstances to complete satisfaction by divesting the defendant of his property, having in it far more intrinsic value than lies in a worthless husband or wife, why may not a court cancel or annul tbe obligation of a contract which bas been wantonly violated by tbe party defendant ? It may be answered that courts may thus cancel a contract when the defendant has appeared in court and unsuccessfully defended against the alleged violation, or without collusion with the plaintiff, acknowledged such allegation to be true, or voluntarily neglected so to do, after actual notice of the pending of such suit by the service of process, but that the court possesses no such power unless some one of these things occur.

If this position be sound, it must be so for the reason that the defendant has had no day in court or no opportunity to defend against such allegation, or in other words, to show that he or she has not been guilty of a violation of the contract in question. This would be going a little too far, however; because, if this reasoning be adopted as correct, it would completely overthrow the doctrine established in attachment cases to which I have before alluded. For I affirm that there is at least as strong a presumption that the contract has been discharged by payment, and that the defendant would have proved such payment had he been served with process, as there is that in the other, the contract has not been violated ; proof of liability is requisite in one case, and violation of the contract in the other. Enforcing or annulling a contract requires the exercise of power. Power is therefore an attribute of sole individualty. The manner of getting this power into activity is another and quite different thing. Each must have a fountain head, which must come from the same or different sources. Where then does the power of a court emanate from ? The answer obviously is, from sovereignty or government. The same sovereignty declares or fixes the means by which that power can be exercised, and the manner of so doing, and no other has any right to prescribe any rules in relation thereto, or interfere therewith. This is said with the qualification that no state of the federal government can act upon a matter which is under the entire and exclusive control of the last named sovereignty. As the State of Wisconsin in its sovereign capacity has the inherent power to declare how, in what manner, and under what circumstances its courts may or shall exercise the powers with which they are vested, it follows that it is legal to exercise those powers in the manner in which the sovereignty has declared it may be done. Whether in this case, there had or had not been a violation of the solemnized marriage contract, is not the question now before this court. That is of course a question of fact to be decided according to the forms of law by the circuit court. The error complained of is, that the court below refused to exercise its legitimate power; but instead of so doing, turned the plaintiff out of court without a hearing. Of this, I think, he has just right to complain. Much might be said in support of the policy of our laws upon the subject of divorce, but it is quite unnecessary.

That policy has been settled by the proper department, the legislature. Courts should at all times be cautious how they act, lest they encroach upon the exercise of powers properly belonging to some other branch of government.

The decree of the circuit court must be reversed, and the cause remanded for further proceedings, consistent with this opinion.

Decree reversed.