Webster v. Brunswick-Balke Callender Co.

Citations

• 37 Fla. 433

Syllabus

<p>1. In actions of replevin under our statute a defense based upon ownership of the property in question can be properly predicated upon a plea of not guilty.</p> <p>2. In an action of replevin where the defendant claims the ownership of the property in dispute it is not necessary to make a demand for the same before bringing suit.</p> <p>3. The defendant (appellant here) was not the original defendant in the suit, but was made such party defendant in the place and stead of the original defendant upon his own application, and the order made upon such application describes him as the lessor of the original defendant in respect of the property sued for, and that it was by reason of being such lessor that he sought to be made a party to the action, and permitted to defend the same, and such defendant before he filed his plea of not guilty, and before he was made a party to the suit, gave a forthcoming bond and took possession of the property, and maintained such possession until judgment in the Circuit Court: Held, That these circumstances sufficiently show prima facie that the defendant asserted title to the property in dispute, and that under such circumstances a demand for the same was not necessary before bringing suit.</p> <p>4. In an action of replevin where a demand is necessary the only effect of a failure to make a demand is to prevent a maintenance of the present suit; but plaintiff could dismiss the suit, make the demand properly and begin a new suit upon the same cause of action.</p> <p>5. A defense of failure to make demand in an action of replevin properly should be accompanied by an offer to surrender, and upon being sustained the costs should be taxed against the plaintiff.</p> <p>6. In this case no demand was proven before suit brought, but the defendant by his plea forced the plaintiff to proof of property. By such plea and retention of possession of the property he indicated another issue than that of want of demand upon which he rested his defense.