Clinton v. King
New York Supreme Court
The Defendant moved for judgment of discontinuance in an action of replevin. The Defendant having appeared within the time prescribed by law, excepted to the sufficiency of the sureties taken by the sheriff, upon the receipt of the writ. The sureties had not justified, nor had any new bond been executed. It appeared that the property described in the writ was taken hy the sheriff and delivered to the Plaintiff.
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The Defendant moved for judgment of discontinuance in an action of replevin. The Defendant having appeared within the time prescribed by law, excepted to the sufficiency of the sureties taken by the sheriff, upon the receipt of the writ. The sureties had not justified, nor had any new bond been executed. It appeared that the property described in the writ was taken hy the sheriff and delivered to the Plaintiff. The Plaintiffs opposed the motion, on the ground that the Defendant was not served with a summons, and therefore insisted that he had no right to appear and except to the bail.
1Opinion of the Court
Harris, Justice.
The sheriff having proceeded so far in the execution of the writ of replevin, as to take the property and deliver it to the Plaintiffs, the Defendant was not bound to wait until he should be served with a summons before he should appear in the suit. He had a right at once to give notice of his appearance, in order that he might, if entitled thereto, procure a return of the property. It is no answer to the default of the Plaintiffs for not having their sureties justify or giving a new bond within the time allowed for that purpose, after notice of exception, that the sheriff had…
2Cited by2 opinions
- Duer v. FoxNew York Supreme Court · 1899
- Havemeyer v. Brooklyn Sugar Refining Co.New York Supreme Court · 1890