Clark v. Clinton

delivered the opinion of the court.

_ The suit was. properly dismissed by the circuit court. The facts set forth in the affidavit for replevin show that the writ should not *339have issued as the property was in the hands of the officer by virtue of a levy under execution. Code of 1800, § 2633. The justice before whom the writ was returned had no authority to change the form of action from replevin to the claimant’s issue. The judgment upon which the execution was issued was not in his court and the execution was not returnable before him. Upon the dismissal of the suit it was proper for the court to render judgment on the bond of the plaintiff in replevin for the return of the property to the defendant, or for the payment of its value as assessed by the jury. It is true the bond is in form a claimant’s bond, but inasmuch as the officer having the custody of the property should only have delivered it to the plaintiff on her entering in a replevin bond, and inasmuch as the substance of the conditions of a replevin bond are found in the one given, its form is rendered immaterial by the Code. Code of 1880, § 2305.

At the instance of the plaintiff, the court directed the record to be returned to the justice before whom the trial had been had for further proceedings. Though she cannot assign this action for error, we have thought it advisable to say that further proceedings in this suit must result in her defeat. The justice has no jurisdiction of the suit as a claimant’s issue, and as a suit in replevin it is not maintainable. The plaintiff should redeliver the property or pay its value as found by the jury to the officer from whom it was taken, and then interpose her claim to the property or its proceeds in the manner prescribed by statute.

Affirmed.