Pingree v. Steere

35 N.W. 905, 68 Mich. 204, 1888 Mich. LEXIS 904

• Court: Michigan Supreme Court
• Decided: January 19, 1888
• Status: Published

Opinions

Champlin, J.

A writ of replevin described the property to be replevied as follows:

“Sufficient of the boots and shoes now in the store or building situate on lot 182 of Moore’s plat of the village of Edmore, Montcalm county, Michigan, and now occupied by defendant herein, to satisfy the claim of the plaintiffs herein, as mortgagees of said goods, amounting to eight hundred and five dollars.”

The sheriff replevied a quantity of boots and shoes, caused an inventory and appraisal thereof to be made, and summoned the defendant, who entered a general appearance, by his attorney. The plaintiffs’ attorney filed his declaration, and defendant’s attorney then moved to quash the writ, for the reason that the writ did not sufficiently describe the property to be replevied; and the court, upon this ground, ■quashed the writ.

In Farwell v. Fox, 18 Mich. 166, the writ described the property as “six oxen,” and it was held to be sufficient.

In Kelso v. Saxton, 40 Mich. 666, it was held that property described in the writ as “ one cow, seven years old, color red and white,” and “ two yearlings, red and white in color,” was good. I

In Sexton v. McDowd, 38 Mich. 148, it was held that the description need not be so explicit and exclusive as to supersede recourse to extrinsic help; if,' with such aid as the plaintiff usually affords, the officer -can identify the property, it is sufficient; citing Farwell v. Fox, supra.

“Indeed,” said the Court, “it may belaid down that in the great majority of cases the designation in the writ must be supplemented by other means of identification, and the officer must use his intelligence in ascertaining assisting facts and in applying the description to the property intended.”

In Wattles v. Dubois, 67 Mich. 313 (34 N. W. Rep. 672), the writ described the property as—

“Two hundred and fifty bushels of wheat of'the Fultz variety, raised and grown upon the farm of plaintiff, on section 7, in township of Portage, Kalamazoo county, Michigan.”

"We held the description sufficient.

It appears that the plaintiffs were entitled to the possession of the whole stock, under their mortgage, and it is not perceived how the defendant is harmed by replevying from him less than the plaintiffs were entitled to. And, if the plaintiffs were entitled to replevin the entire stock, there could be no difficulty in executing the writ by taking sufficient to satisfy the plaintiffs’ claim from the stock mortgaged.

The judgment must be reversed, and the order setting aside and quashing the writ vacated, and the defendant will have leave to plead to the declaration.

Morse,- J., concurred with Ghamplin, J.