Claflin v. Davidson

Headnote

Costs—Claim and delivery—Chattel replevied and not redelivered—Verdict in such action, when need not fix value.

When the verdict in a claim and delivery action awards to the plaintiff a chattel which had been replevied, and which had not afterward been delivered by the sheriff to the unsuccessful party, or a person not a party to the action, the plaintiff is entitled to full costs. The limitation in the last clause of subdivision 2 of § 3228 does not apply to such a case.

Under the facts above stated the value of the chattel is not required to be fixed by the verdict.

Appeal by defendant from order directing clerk to tax costs in plaintiffs’ favor.

The action was to recover chattels. The defendant as sheriff, had taken the chattels by an order of attachment. The coroner replevied the chattels and delivered them to the plaintiff, in whose possession they thenceforth

remained. On a trial by a jury the verdict was for plaintiff, but the verdict did not fix the value of the chattels.

The plaintiffs presented a bill of costs to the clerk for taxation, who refused to tax it on the ground that the value of the chattels not having been fixed by the jury pursuant to § 3228, sub. 2, Code Civil Procedure, there was no basis on which to tax costs.

Plaintiffs thereupon moved at special term for an order directing the clerk to tax the bill of costs; and also appealed from the clerk’s decision to the special term.

The motion and appeal were heard at special term, before Ingraham, J., who granted the motion, delivering the following opinion :

“Ingraham, J.—Sections 1726 and 1727 of the Code provided the cases in which the jury must fix the value of the chattel. By section 1726 it is provided that where a verdict, report or decision awards to the plaintiff a chattel which has not been replevied, or where it awards to the prevailing party a chattel which has been replevied and afterwards delivered by the sheriff to the unsuccessful party or a person not a party to the action, it must also, except in the cases specified in the next section, fix the value of the chattel at the time of the trial.

“ In this case the verdict awarded to the plaintiffs a chattel which had been replevied, and which had not afterwards been delivered by the sheriff to the unsuccessful party, or a person not a party to the action, and the case therefore is not within section 1726 of the Code. Section 1727 provides for the cases where the verdict or decision is in favor of the defendant.

“The verdict did not fix the value of the chattel. There is no provision in the act that requires it to fix the value of the chattel where it awards the possession of the chattel to a person to whom it had been delivered.

“ By section 3228 of the Code c the plaintiff is entitled to costs upon the rendering of the final judgment in his favor

in either of the following cases: 1st. In an action. . . . 2d. In an action to recover a chattel; but if the value of the chattel or all the chattels recovered by plaintiffs, as fixed, together with the damages, if any, awarded to him, be less than fifty dollars, the amount of his costs cannot exceed the amount of the value and the damages. ’ Reading this section with sections 1726 and 1727, I think it must have been the intention of the legislature to limit this provision to the.case in which the jury or the court were authorized to fix the value of the chattel, and I think the true meaning of the section is that the plaintiff is entitled to costs in an action to recover the value of a chattel, except that in an action in which the jury are authorized to find the value of the chattel, that if the value of the chattel and the damages do not exceed fifty dollars, the costs cannot exceed the amount of such value and the damages.

“ I am' inclined to think, therefore, that the costs should have been taxed by the clerk. Motion should therefore be granted, and the clerk directed to tax the bill of costs presented by plaintiff. No costs.”

An order was thereupon entered granting the. motion and ordering the clerk to tax the bill of costs ; from which order this appeal is taken.