Janauschek v. Eddy

Michigan Supreme Court
Janauschek v. Eddy, 108 Mich. 190 (Mich. 1896)
65 N.W. 752; 1896 Mich. LEXIS 939
Grant, Grath, Hooker, Long, Montgomery

Janauschek v. Eddy

Opinion of the Court

Montgomery, J.

This is an action of trover for the conversion of 80 bushels of potatoes. The case made by the plaintiffs was that in the year 1894 Joseph Jaschusch Avas the owner of a farm. The plaintiff John Janauschek worked a portion of the farm on shares, and harvested about 80 bushels of potatoes, which were placed in the cellar of the house occupied in common by the two families. Some time before the 14th of December, Joseph Jaschusch went to Montana, leaving his wife and two children, and the plaintiff Janauschek and his family, occupying the house. He authorized his wife to use from the potatoes such as she should need. It was agreed *191between Joseph Jaschusch and the plaintiff Janauschek that what potatoes they did not use for the family or for seed might be sold in the spring. On the 14th of December, the defendant, who was sheriff of the county, through his deputy, William J. Niness, attached the property, and, it appears, afterwards sold it. No attempt was made to show a valid attachment or justification, but the case turned upon the right of the plaintiff Jaschusch to join in the action. The circuit judge charged the jury that if her only interest in the potatoes was the right to go and use them, or to eat what she could, the verdict should be for the defendant. The jury found for the defendant, and the plaintiffs appeal.

The jury found, in answer to a special question, that the only interest that Mrs. Jaschusch had in the potatoes was for herself and family to eat of them. The plaintiffs do not rest their case upon any claim that the property was exempt, nor is the record sufficiently full as to the circumstances of the levy to enable us to determine this question ; but plaintiffs’ counsel states, on the contrary, that no such question is involved. But it is contended by plaintiffs’ counsel that there was a joint possession,- and that, as against a mere wrong-doer, possession alone is sufficient to maintain the action. But we think the relation of the wife to the property of her husband during his temporary absence from home is not such as to vest the right in her to sue in her own name for the recovery of his property wrongfully converted. Her possession is, in fact, his possession. He is the head of the family, and could undoubtedly join in or bring an action based upon the wife’s possession in his right.

The judgment will be affirmed.

Long, Grant, and Hooker, JJ., concurred. Mc-Grath, C. J., did not sit.

Reference

Full Case Name
JANAUSCHEK v. EDDY
Status
Published