Krosmopolski v. Paxton

Citations

• 58 Miss. 581

Syllabus

<p>1. Replevin'. Failure to seize property. Sect. 8619, Code of 1880, construed.</p> <p>Sect. 2619 of the Code of 1880, in relation to the action of replevin, provides as follows: “If the return of the officer on the writ shall show a failure to take the goods and chattels, hut that the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property and damages for the taking or detention, or for a conversion of the property, as if he had thus commenced his action.” This statute was not intended to authorize the conversion of the action of i'eplevin into an action of trover, detinue, or trespass on the case in every instance where there is a return on the writ of “notfound” as to the property; but the intention was to allow the plaintiff in replevin to declare for, and prosecute his action for, the value of property not seized under the writ, in those cases only where the property was in possession of the defendant at the time of the commencement of the action, the action in such cases to remain an action of replevin as to the forms of procedure and period of trial. If, at the time of suing out his writ, a plaintiff has no right to maintain replevin because the property is not in the possession of the defendant, he cannot, upon a return of “not found,” declare for the value thereof, under the above statute.</p> <p>2. Same. Partial failure to seize property. Declaration in such case.</p> <p>In any case where the plaintiff in replevin would be entitled, under the statute above quoted, to declare for the value of all of the property claimed because there has been an entire failure to seize the same under the writ, he is entitled to declare for the value of a part of the property, if a part of it has been seized and a part has not; and the right to declare for the value of that not seized does not affect the right to declare specifically for that which has been seized.</p> <p>3. Same. Failure to recover value