Burckle v. Luce

Headnote

Where a sheriff retakes personal property of an intestate, by virtue of a levy made in his lifetime, and the property at the time of such retaking is in the possession of his executors; and the executors bring an action of replevin against .the sheriff for such retaking, and the sheriff succeeds in the final event, he is entitled to double costs under the statute; the action is not necessarily Irought ly the plaintiffs as executors.

Motion by defendant for double costs.

Defendant was a deputy sheriff, of Oswego county. In January, 1840, he received a fieri facias in favor of Philander Rathbun, against one of the plaintiffs, Christian J. Burckle, and levied upon household furniture in the possession of Burckle. Charlotte Leitz (mother-in-law of Burckle, then living in his house) claimed the property, and brought an action of replevin, which was tried, and verdict rendered for defendant (Luce). Mrs. Leitz moved for a new trial on a bill of exceptions, which was granted, and before the cause was again tried, ■ and while it was pending, the suit abated by the death of Mrs. Leitz, which took place in the early part of February, 1842. Some months after her death, in the summer of 1842, Luce, the defendant, retook the property by virtué of his previous levy, for which retaking this suit was brought. Defendant stated that during all this time he was a duly appointed deputy sheriff. This cause was brought to trial at the Oswego '“circuit for June, 1843, when plaintiffs’ counsel objected to defendant’s proof, on the ground that the

sheriff had no right to retake the property by virtue of his former levy, inasmuch as the abatement of the former replevin suit, by the death of Mrs. Leitz, did not revest the title to the property in the sheriff, which objection was sustained at the circuit; afterwards this court granted a new trial.

The cause was again brought to trial at the Oswego circuit, 1845, and tried on the merits, and a verdict rendered for the defendant Luce, the value of the property assessed at $574. Defendant’s damages for the detention, at $172.20, and the amount due on the defendant’s execution found to be $826.74. Plaintiffs moved for a new trial on a bill of exceptions, at the last January term, which was denied. It was insisted by plaintiffs’ counsel that the suit was necessarily brought by the plaintiffs, in their official character as executors, therefore, no costs should be given against them.