Loewenthal v. Wagner

52 A. 298, 68 N.J.L. 214, 39 Vroom 214, 1902 N.J. Sup. Ct. LEXIS 122

• Court: Supreme Court of New Jersey
• Decided: June 9, 1902
• Status: Published

Opinion

The opinion of the court was delivered by

Dixon, J.

The defendant has a rule requiring the plaintiff to show cause why the sheriff of Hudson county should not repay to Joseph Stein $1,000 deposited by Stein with the sheriff as security, when the latter, as is alleged, released the defendant, whom he had arrested on a capias issued at the suit of the plaintiff.

The sheriffs return to the capias was that he had the defendant in custody, and this return remains unaltered on the files of the court. Except .upon a direct attack to set it aside or amend it, the return is conclusive against the sheriff (Hustick v. Allen, Coxe 168; Browning v. Flanagin, 2 Zab. 567, 574; 22 Am. & Eng. Encyl. L. 192), and, in this suit, upon the parties also. Chapman v. Cumming, 2 Harr. 11; Browning v. Flanagin, ubi supra; 22 Am. & Eng. Encycl. L. 193. In the face of it, we do not see that the plaintiff has any interest in the money, for according to that return she has the body of the defendant to answer her claim, and she can lawfully demand nothing more. The question relating to the disposition of the money is one that concerns only the defendant-or his surety and the sheriff. On a rule against the plaintiff alone, we can make no order -respecting it, and therefore this rule must be discharged as futile.

The defendant also moves to non pros, the plaintiff, because she did not file a declaration, nor rule the sheriff to bring in the body of the defendant so that the cause might proceed. But according to the return on the capias no rule to bring in the body was necessary, and the plaintiff filed her declaration within thirty days after the defendant was returned in custody, as the statute requires.

This motion must be denied.' The plaintiff is entitled to costs.