Robinson v. Austin

Robinson v. Austin. In an action of replevin under tlie statute (Laws 1876, p. 116), where the officer fails to give the defendant an opportunity to execute the statutory bond and retain possession of the property, the defendant may on motion and proper showing have the property restored to him, or he may have his action against the officer. The neglect of the officer is not a ground for dismissing the suit. Error to County Court of Boulder County. ’ Replevin brought by plaintiff in error in the county court of Boulder county, at the October term of said court, 1876, to recover possession of one sorrel stallion colt, four years old, and thirty tons of hay. The value of the colt being placed by the appraisement at $160 and the hay at. $300. The affidavit was made and filed with the clerk of the county court, on the 5th day of September, 1876, and writ issued the same day. The sheriff served the same by reading the writ and delivering a copy thereof to defendant, and taking into his possession the property named ih the writ, and notifying the defendant of that fact, all on the same day. The sheriff on the 9th of September caused the property to be appraised, and on the 10th delivered the same to the plaintiff and took bonds of him ; the defendant not tendering any bond. Plaintiff filed his declaration September 29th, 1876. On the 11th day of October, 1876, the defendant in error filed his motion to quash the writ of replevin and to dismiss the suit, and asked for a return of the property. The motion was sustained. Mr. Alpheus Weight, for plaintiff in error. Messrs. Berkley & Blake, for defendant in error. [MAJORITY — Elbert, J.] Elbert, J. The facts in this case are similar to those presented in the case of Parlin v. Austin (ante, p. 337) decided at the present term. It was there held, that the fact that the defendant in the replevin suit had been given no opportunity to execute the statutory bond, and retain the replevied property under the provisions of the act of 1876, by reason of the failure of the officer executing the writ to have the replevied property appraised within the three days fixed by law, was no ground for dismissing the writ. In such case the defendant has his action against the delinquent official, or may on motion and proper showing have the property restored to him upon executing the requisite , statutory bond. The judgment of the court below is reversed, and the cause remanded for further proceedings according to law. Reversed.