Burkle & Gebbard v. Luce
New York Court of Appeals
On error from the Supreme Court. Burkle and Gebbard, as executors of the will of Charlotte Seitz, sued Luce in replevin. The cause was first tried at the Oswego Circuit in June, 1843, when a verdict was had for the plaintiffs. The Supreme Court on bill of exceptions granted a new trial.
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On error from the Supreme Court. Burkle and Gebbard, as executors of the will of Charlotte Seitz, sued Luce in replevin. The cause was first tried at the Oswego Circuit in June, 1843, when a verdict was had for the plaintiffs. The Supreme Court on bill of exceptions granted a new trial. (See 6 Hill 558.) The cause-was again tried before Gridley, Circuit Judge, at the Oswego Circuit, in June, 1845. The case was this: The defendant was a deputy of the Sheriff of Oswego county, and on the 8th of January, 1840, a fieri facias was delivered to him against Christian J. Burkle, and on the same day…
1Opinion of the Court
Jewett, Ch. J.,
delivered the opinion of the Court. I am of opinion that the action brought by Mrs. Seitz, abated by her death, and could not be revived by scire facias. (2 R. S. 576, § 2; ib. 386-7, §§ 2, 3; Webber vs. Underhill, 19 Wend. 447; Cutfield vs. Corney, 2 Wils. R. 83.)
The plaintiffs, however, insist that the delivery of the goods to Mrs. Seitz, by virtue of her writ of replevin, put an end to the lien acquired by the levy .under the execution made by the defendant, and consequently he had no right to retake the property, although the suit was at an end. If this position be correct,…
2Cases cited5 opinions
- Nichols v. PostlethwaiteSupreme Court of the United States · 1791
- Webbers' Executors v. UnderhillNew York Supreme Court · 1838
- Woglam v. CowperthwaiteSupreme Court of the United States · 1790
- Acker v. WhiteNew York Supreme Court · 1841
- Cowdin v. StantonNew York Supreme Court · 1834
3Cited by4 opinions
- Territory of Wyoming v. NelsonWyoming Supreme Court · 1880
- Burnham v. BrennanThe Superior Court of New York City · 1881
- Frank v. Circuit JudgeMichigan Supreme Court · 1895
- Pierson v. MorganNew York Supreme Court · 1886