Benjamin v. Smith

Supreme Court of Minnesota

Benjamin v. Smith

44 N.W. 1083, 43 Minn. 146, 1890 Minn. LEXIS 130

CourtSupreme Court of Minnesota

DecidedApril 11, 1890

StatusPublished

Cited by3 cases

This text of 44 N.W. 1083 (Benjamin v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benjamin v. Smith, 44 N.W. 1083, 43 Minn. 146, 1890 Minn. LEXIS 130 (Mich. 1890).

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Opinion

Gilfillan, C. J.

The action .for possession of personal property is commenced by the service of summons, as other actions are, and not, as was the former action of replevin, by writ requiring a seizure of the property. The statute (Gen. St. 1878, c. 66, § 132) leaves it optional with the plaintiff to claim an immediate delivery at the time of issuing the summons, or after that and before answer, or to waive that, and let the action proceed, the possession to be obtained upon execution after judgment. The character of the action is determined by the complaint, and not by the plaintiff claiming, or failing to claim, immediate delivery. If he waive his right to an immediate delivery, the action is not thereby changed to one for conversion merely. The action was therefore properly triable in the county of Bice, and the court correctly denied the motion for a change of venue. The evidence justified the verdict.

Judgment affirmed.

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Gilfillan, C. J.

The action .for possession of personal property is commenced by the service of summons, as other actions are, and not, as was the former action of replevin, by writ requiring a seizure of the property. The statute (Gen. St. 1878, c. 66, § 132) leaves it optional with the plaintiff to claim an immediate delivery at the time of issuing the summons, or after that and before answer, or to waive that, and let the action proceed, the possession to be obtained upon execution after judgment. The character of the action is determined by the complaint, and not by the plaintiff claiming, or failing to claim, immediate delivery. If he waive his right to an immediate delivery, the action is not thereby changed to one for conversion merely. The action was therefore properly triable in the county of Bice, and the court correctly denied the motion for a change of venue. The evidence justified the verdict.

Judgment affirmed.

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Bluebook (online)

44 N.W. 1083, 43 Minn. 146, 1890 Minn. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-smith-minn-1890.

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