Ricketts v. Dorrel

55 Ind. 470

• Court: Indiana Supreme Court
• Decided: November 15, 1876
• Status: Published

Opinions

Biddle, J.

Replevin, commenced before a justice of tbe peace. Tbe cause of action is stated as follows:

“ "William Dorrel, being duly sworn, says that bis personal property, consisting of seven hundred and thirtyeigbt rails of walnut and oak wood, of the value of fifteen dollars, and one hundred and sixty-four stakes of oak and walnut wood, of the value of live dollars, have been wrongfully taken and are unlawfully detained by James C. Ricketts; that said personal property has not been taken by virtue of any execution or other writ against him, and that he has sustained damages, by said wrongful taking and unlawful detention, in the sum of twenty-five dollars,” etc.

Before the justice of the peace, the appellant moved the court to dismiss the action and quash the writ of replevin. His motion was overruled. Answer, general denial and two special paragraphs. During the tidal before the justice, “ It appeared to the court that the title to land was under dispute,” and he thereupon certified the case to the Ohio circuit court. The parties in the circuit court appeared .to the action, and the appellant, without taking any exceptions to the mode in which the case had been-certified up, moved to dismiss the action. His motion was overruled, and exceptions reserved. Trial by jury, general verdict for appellee, and for five dollars damages, with answers to special interrogatories as follows:

“ 1. Is William Dorrel the owner and entitled to the possession of the rails and stakes described in the complaint ?

“Answer. Yes.

“2. Was Dorrel the owner of the east half of the line fence between him and Ricketts, before the same was removed by Ricketts ?

“3. Did the rails and the stakes in the complaint named, at the time when this suit was brought, and when seized by virtue of the writ of replevin herein, form a part of a partition fence, dividing the lands of Dorrel and Ricketts ?

“4. At the time this suit was brought, and when they were seized by virtue of the writ of replevin herein, did they form a part of, and were they connected with, a standing fence ?

“Answer. Yes.”

The appellant moves “ the court, upon his written motion, now filed, for a judgment on the special findings of the jury herein.”

These proceedings were had at the January term of the court, 1875. At the March term of the court, 1875, the motion for judgment on the special findings was overruled, and exceptions reserved. No application or motion for a new trial, upon written causes filed, was made at the term the verdict was rendered. No question, therefore, which arises under a motion for a new trial, is presented in the record. Krutz v. Craig, 58 Ind. 561; Griesel v. Schmal, post, p. 475; Sherlock v. The First National Bank, etc., 53 Ind. 73; Marshall v. Beeber, 53 Ind. 83.

In support of the motion for a judgment on the special* findings, it is insisted that they show the rails and stakes replevied to have been, at the time, erected into a fence, and remaining a part thereof; and that the fence, being a part of the realty, and owned by the parties as tenants in common, can not be replevied as personal goods.

The special findings in this case plainly show that the rails and stakes replevied, at the time the suit was commenced, and when they were taken by virtue of the writ, constituted a part of a standing fence, and were, therefore, a part of the realty. "We are of the opinion that they were not “personal goods,” in the true meaning of the statute authorizing replevin, (2 R. S. 1876, p. 628, sec. 71) and, therefore, not subject to be replevied, even admitting that they were wrongfully taken and wrongfully detained, and wrongfully put in the fence, by the appellant. If a person wrongfully took and detained shingles, and nailed them upon his roof, or wrongfully took and detained brick, and laid them in a wall, it would be a mischievous and unsafe rule to allow the owner to replevy them, even though his rights were greatly outraged. There are other remedies to redress a wrong of this kind; and in laying down the present rule as law, we deny the party no right, but simply refuse him a remedy by replevin. In the present case, if the appellee has suffered a wrong, we think he has mistaken his remedy to redress it.

The judgment is reversed, with costs. Cause remanded for further proceedings.