Smith v. Demarrais

Michigan Supreme Court

Smith v. Demarrais

39 Mich. 14, 1878 Mich. LEXIS 188

CourtMichigan Supreme Court

DecidedJune 11, 1878

StatusPublished

Cited by1 cases

This text of 39 Mich. 14 (Smith v. Demarrais) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Demarrais, 39 Mich. 14, 1878 Mich. LEXIS 188 (Mich. 1878).

Pincite

Opinion

Marston, J.

The only question of any importance in this case is, whether, where an action of replevin has been commenced, a trial had upon the merits and a judgment rendered in favor of the defendants for a return of the property, they can after an execution has been issued thereon, and returned unsatisfied, bring and maintain an action of trover to recover the value of the same property?

The remedy which defendants have under such circumstances upon the replevin bond is not exclusive. The judgment in the replevin suit, where a trial is had upon the merits, in favor of the defendants and for a return of the property to them, vests in them the title thereto, and if the plaintiff has so disposed of the property that they are unable to obtain possession thereof, they may bring an action of trover to recover its value.

Upon the rendition of this judgment, the right of [15]*15possession which the plaintiffs in that suit had acquired under the writ of replevin was thereby terminated, and the defendants as owners were clearly entitled to the possession; failing to obtain possession, to the value. The judgment of the court was a solemn legal adjudication that the defendants and not the plaintiffs were entitled to the property, and it gave them all legal remedies, not prohibited by statute, to obtain possession of the property or its value.

The judgment must be affirmed with costs.

The other Justices concurred.

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Marston, J.

The only question of any importance in this case is, whether, where an action of replevin has been commenced, a trial had upon the merits and a judgment rendered in favor of the defendants for a return of the property, they can after an execution has been issued thereon, and returned unsatisfied, bring and maintain an action of trover to recover the value of the same property?

The remedy which defendants have under such circumstances upon the replevin bond is not exclusive. The judgment in the replevin suit, where a trial is had upon the merits, in favor of the defendants and for a return of the property to them, vests in them the title thereto, and if the plaintiff has so disposed of the property that they are unable to obtain possession thereof, they may bring an action of trover to recover its value.

Upon the rendition of this judgment, the right of [15]*15possession which the plaintiffs in that suit had acquired under the writ of replevin was thereby terminated, and the defendants as owners were clearly entitled to the possession; failing to obtain possession, to the value. The judgment of the court was a solemn legal adjudication that the defendants and not the plaintiffs were entitled to the property, and it gave them all legal remedies, not prohibited by statute, to obtain possession of the property or its value.

The judgment must be affirmed with costs.

The other Justices concurred.

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Bluebook (online)

39 Mich. 14, 1878 Mich. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-demarrais-mich-1878.

Opinion

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