Libby v. Murray
Wisconsin Supreme Court
APPEAL from tbe Circuit Court for Waupaca County. Replevin, for a hearse alleged to have been seized by defendant as an officer, upon a warrant of attachment issued by a justice’s court in an action against plaintiff’s husband. The facts shown by the evidence will sufficiently appear from the opinion.
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APPEAL from tbe Circuit Court for Waupaca County. Replevin, for a hearse alleged to have been seized by defendant as an officer, upon a warrant of attachment issued by a justice’s court in an action against plaintiff’s husband. The facts shown by the evidence will sufficiently appear from the opinion. Defendant appealed from a judgment in favor of the plaintiff. 1. A levy not authorized by law is a trespass, for which an appropriate action will lie; but replevin will not lie unless the officer has removed the goods, or has them in his possession when suit is brought. Wells on Repl., § 52;…
1Opinion of the Court
Cole, O. J.
This action of replevin could only be sustained against an officer who had either the actual or the constructive possession of the property when the suit was commenced. Where the officer seizes and possesses himself of chattels under a writ in such a manner as to enable him to maintain trespass or replevin against a wrongful taker thereof, there replevin may be brought against such officer by the real owner, if a stranger to the writ. This was the rule laid down in Gallagher v. Bishop, 15 Wis., 276, and which was affirmed in this court in the recent case of Williams v. Morgan, 50…
2Cases cited2 opinions
- Gallagher v. BishopWisconsin Supreme Court · 1862
- Williams v. MorganWisconsin Supreme Court · 1880
3Cited by2 opinions
- McHugh v. RobinsonWisconsin Supreme Court · 1888
- Buckwheat v. St. Croix Lumber Co.Wisconsin Supreme Court · 1889