Gidday v. Witherspoon

35 Mich. 368, 1877 Mich. LEXIS 20

Opinion

Cooley, Ch. J.:

This was an action of replevin in which the defendant’s claim to the property, such as it was, was derived exclusively under a levy which he had not so far completed as to take possession of the property. The plaintiff appears to have failed in the suit because the property was in his own possession when he sued out his writ. Thereupon the court proceeded to render judgment against the plaintiff for costs, and also for a return of the property to the defendant in order that he might complete his levy.

This judgment for a return was erroneous. The statute requires a lien or special property to be specially found: Comp. L., § 675J¡.; and where it is not found the court cannot recognize it by the judgment. In this case there was ho evidence on which such a finding could have been had; for the judgment on which the execution issued was not proved. The execution would protect the officer against personal responsibility in serving it, but when he claims property under it, he must show that it was warranted by a judgment. — Beach v. Botsford, 1 Doug. (Mich.), 199.

The judgment for a return of the property must be reversed, with costs of this court. In other respects the judgment will be allowed to stand.

The other justices concurred.