Griffith v. Smith

22 Wis. 646

• Court: Wisconsin Supreme Court
• Decided: February 15, 1868
• Status: Published

Opinion

Paine J.

This was an action to recover possession of a quantity of logs. Tbe defendant held- them as sheriff, having seized them by virtue of a writ of attachment, issued in a proceeding to enforce alien for labor in getting out tbe logs. Tbe writ, in such a case, commands tbe officer to seize and bold tbe identical property which is claimed to be subject to tbe lien. The case falls, therefore, precisely within the principle established in Watkins v. Page, 2 Wis., 98, and re-affirmed in Weinberg v. Conover, 4 id., 803. Those cases held that, upon tbe facts bere presented, tbe officer was not liable to an action of replevin. And whatever, might be tbe opinion of tbe court as now constituted upon tbe question, were it a new one, we shall- not now attempt to're-examine a question that has been so long decided. Tbe counsel for tbe appellant alleges that there was collusion between tbe parties to tbe lien proceeding, and there is some evidence indicating that such might have been tbe fact. And if tbe question could be gone into in this action, it is possible that tbe right of tbe plaintiff might have prevailed against tbe attachment. But it being once determined that tbe officer is not liable to tbe action, for doing what a legal writ specially commanded him to do, it is useless to suggest or enquire what tbe merits might have been in case tbe action could have been sustained. What may be tbe remedy of a party situated as tbe plaintiff claims to be, is not so obvious that we feel called on to make any suggestions in regard to it, in advance of a necessity for doing so.

The judgment must be affirmed.-

By the Court. — Judgment affirmed.