Krieger v. Warner

2 Mich. N.P. 229

• Court: Circuit Court of the 2nd Circuit of Michigan
• Decided: October 15, 1871
• Status: Published

Opinion

By the Court,

Blackman, J.

The plaintiff replevied a stock of groceries attached by the defendant as Sheriff.

The defendant now moves to quash, for three reasons :

1. Because of the insufficient description of -the goods in the writ.

2. Because the goods were .not appraised according to la.w.

3. Because the Narr was not filed until after the time prescribed, viz : on the return of the writ.

The several objections will 1)3 considered in thejr order. The statute. Chap. 152, nowhere prescribes the certainty with which the good replevied shall be described.

In § 5010, which gives a form for-thc writ, á blank' is directed to he filled by “ describing the- goods and chattels to be replevied.” 1 n the absence of a statutory provision the Court must apply the common law rule, which requires certainty to a general extent, its expounded io 18 Mich., 170. And the proper application of this rule must be controlled by the peculiar circumstances of the ease.— Potter’s store bad been shut up by the Sheriff. Obviously no such thing as an inventory is possible. He has given as many limitations to the descriptions as were in his power, by confining servicer of the writ to all the groceries in the store occupied by Potter, on a certain lot in St.« Joseph. The kind, quantity and location of goods are specified.

The ¡defendant has takeu inventory if he has executed the writ-of attachment so that his rights are not. periled. See on this point, Grah. Pr., 733; Petersdorff’s Abr., 194.

The second objection does not appear to be founded on facts.— The counsel for defendant in pointing out the particular fact on whieh he relies, states that from the officer’s return it does not a’ppcar the appraisement was made on oath. By § 5018, the officer must return the manner in which he executed the writ. It appears front the appraisement and return that all the statute required was done. The oath itself need not be returned.

The third and last objection is based upon a peculiar construction of § § 5026. 5027, and decisions on statutes found in 2 Wis.. 17; 4 Id., 152; 1 Hill, (Cal.,) 216. The writ may be returned before the return day. § 5018. On such return the Clerk shall enter an appearance for the defendant.

Counsel for defendant claim the next section, 5027, requires the plaintiff to declare u within the same time,” leaving out of this connection the words, “ as in personal actions.”

On the counsel’s own construction this default is only ground for a judgment of discontinuance. See Grah. Pr., 732, for directions; or 1 Burr Pr., 488.

The counsel for defendant has wholly misconstrued the statute which requires plaintiff to declare in the same time as in personal actions, which is, (R. 16,) twenty days after the return day. The Narr was filed ten days after.

The motion is therefore denied with costs.