Gidday v. Witherspoon

Michigan Supreme Court

Gidday v. Witherspoon

35 Mich. 368, 1877 Mich. LEXIS 20

CourtMichigan Supreme Court

DecidedJanuary 9, 1877

StatusPublished

Cited by9 cases

This text of 35 Mich. 368 (Gidday v. Witherspoon) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gidday v. Witherspoon, 35 Mich. 368, 1877 Mich. LEXIS 20 (Mich. 1877).

Pincite

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.

Free access — add to your briefcase to read the full text and ask questions with AI

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.

Cite This Page — Counsel Stack

Bluebook (online)

35 Mich. 368, 1877 Mich. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gidday-v-witherspoon-mich-1877.

Opinion

Related

Cite This Page — Counsel Stack