
    JOHN NELSON v. GEORGE L. BOCK, CECELIA D. BOCK AND THE COMMUNIPAW MOTOR CAR COMPANY.
    Submitted December 6, 1912
    Decided March 5, 1913.
    1. In replevin, where the goods are retaken by the defendant and the judgment, if for plaintiff, is by statute for the value of the goods and damages for detention, separate findings of value and damages are not required, but both items are properly included in one verdict.
    2. Possession of personal property is prima fade evidence of title thereto,
    3. A document attested by a subscribing witness must be proved by the testimony of such witness, unless it appear that this testimony is unavailable.
    4. When a claim of property in chattels served under legal process is made pursuant to section 190 of the District Court act, and not followed up by a demand for jury and trial pursuant thereto, and such chattels are subsequently sold under such process, the officer is exempt from action for taking and selling the goods, but the exemption does not preclude an action by the claimant against the purchaser at the judicial sale or any other person subsequently found in possession of the property.
    On appeal from District Court.
    Before Justices Trenchard, Parker and Minturn.
    For the plaintiff, Frank G. Turner.
    
    For the defendants, Traverse A. Spraggins and Eugene R. Hayne.
    
   The opinion of the court was delivered by

Parker, J.

This was a replevin suit. The property was taken under the writ and the defendants rebonded and thereby secured its return. The result of this was to turn the suit into an action of damages for the value of the property or for the return of the goods to the plaintiff at the option of the plaintiff. Lembeck & Betz Brewing Co. v. Tarrant, 50 Vroom 372.

It appeared that the goods claimed, consisting of an automobile and some office furniture, had been levied on bjr a constable under a District Court execution as the property of the Communipaw Motor Car Company at its place of business, and after due advertisement were sold, the furniture to one Moore, who by his bill of sale transferred it to plaintiff, Nelson, and the automobile to Nelson at the constable’s sale.

At the trial of that replevin suit the defendant Cecelia Bock claimed to be the owner of the property, but her claim was disallowed and certain evidence in support of it overruled and a judgment given for plaintiff in the sum of $300.

The first ground of appeal is that the District Court was without jurisdiction to try the action because the defendant George L. Bock at the time of the trial was a bankrupt. It suffices to say that there was absolutely no proof of this in the case, and the mere assertion of the fact by counsel at the trial was properly disregarded by the court.

The next point' is that the judgment is in violation of section 127 of the District Court act, in that the court did not find the value of the goods and chattels as well as the damages of the plaintiff and render a judgment in damages as well as for the value of the goods and chattels as for taking and detaining them. This objection is without substance. The claim seems to be that the judgment should specify how much is awarded for the value of the goods and how much for the detention. But we see no reason for holding that these items should be separated in the judgment any more than that the jury, in an action in debt, should return a verdict specifying how much is awarded for the principal of the debt and how mttch for the interest thereon. The statute is intended to prescribe the elements of which the total of the judgment is composed, not to require a' specification of those elements in the judgment.

The point that the judgment is against the weight of evidence is of course not one to be considered in this court, if there is'any'evidence to support the judgment, as in our opinion there was. The possession of the-property by-the Communipaw Motor Car Company was prima facie evidence of the title of that company. Wigm. Ev., § 2515. That prima facie title was apparently transferred by the constable at the sale under execution and levy, which were properly proved, and then passed to the plaintiff, Kelson. The finding of the court on the question of property, therefore, cannot be disturbed. This also covers tlie fourth point urged in the brief.

The fifth point challenges an alleged ruling of the trial court on evidence, to which we are not cited by the brief, and which we have been unable to find on examination of the ease. It may be well to add, irrespective of the alleged ruling of the court, that there was other competent evidence which will be sufficient to support the finding of the court.

The sixth point is that the court refused to receive evidence as io the execution of tlie bill of sale by the Communipaw Motor Car Company to the defendant Cecelia Bock. This refusal was manifestly proper, in view of the fact that the bill of sale had a subscribing witness and the subscribing witness was not produced, and no proof was made that indicated that such witness could not be obtained. Corlies v. Van Note, 1 Harr. 324, 329; Worman v. Seybert, 49 Vroom 176; Boyle v. Knauss, 52 Id. 330, 335.

Upon the last point, however, the judgment must he reversed. The defendant Cecelia Bock was sworn and was asked whether at the time of the levy she was the owner of the property. This was objected to and excluded on the ground that after the levy Mrs. Bock had filed with the constable a claim of property pursuant to section 190 of tlie District Court act (Comp. Stat., p. 2008, § 190), and had failed to follow it up by applying for a jury trial, and that therefore she was estopped from setting up ownership of the property in the replevin suit. 'This ruling of the District Court was in our judgment erroneous. The statute in question reads as follows:

“In all cases where any constable or sergeant-at-arms shall by virtue of any writ of execution or attachment issuing out of any district court, levy on, attach or take into his possession any goods or chattels which shall he claimed by notice in writing., delivered to said constable by any other person than the judgment debtor, he shall, immediately upon such claim, dela}r his sale of the same ten days, that the said claimant may within the said time, apply to the judge of such court for a venipfi to summon a jury of six lawful men as jurors to try the right of such claimant to such property; and it shall be lawful for such judge to order a venire to issue the same and direct a return thereof to be made and to proceed therein as in other cases of trial by jury, but the claimant shall, in all cases, give two days’ notice in writing to the judgment creditor of the time and place of the said trial; but if the claimant shall not within ten days, apply to said court and have his right tried as aforesaid, the said claim shall be considered abandoned and the constable shall proceed as if it had not been made and shall not be liable in any action therefor thereafter.”

A similar provision is found in section 62 of the Justice Court act (Comp. Stat., p. 2999), except that the latter section does not contain the words “and shall not be liable in any action therefor thereafter.” The section of' the Justice Court act was considered in the case of Berry v. Chamberlain, 24 Vroom 463. In that case there had been a trial' on the claim of property and a verdict against the claimant and this was held conclusive so as to bar the claimant, from any action against the purchaser under the execution.

Chief Justice Beasley remarked on page 468:

“The claimant has the option of presenting his claim or to vindicate his rights of properly bjr an action of replevin or in trespass de bonis asporlatís; plaintiff in execution may give bond and delay a sale under his execution and thus leave the question of title for trial to the ordinary tribunals. But the parties can waive such rights and at their option accept the easier method of litigation proffered by the legislature, and in such event the rule applies, volenti non fit injwia.”

In Van Marter v. Lucas, 35 Vroom 182, a claim of property was filed, but no trial was demanded and the constable proceeded to sell after waiting for the statutory time. After the sale the claimant sued the constable in tort and recovered a judgment for the value of the property. Judgment was reversed in this court on the ground that the constable was protected by the statute, the court holding that “if within ten days after service of the statutory claim the claimant takes no action in vindication of his right and the officer proceeds to sell in reliance upon the implied abandonment of the claim, he is exonerated from responsibility in tort to the claimant'.”

In Masters v. Champion, 45 Vroom 323, a similar state of facts existed and the court followed the ruling in Van Marter v. Lucas. The ease was carried to the Court of Errors and Appeals and is reported in 46 Id. 768. On page 770 Chancellor Pitney, writing the opinion of the court, remarked, “whether the estoppel inures to the benefit of purchasers at the constable’s sale, or of any person other than the plaintiff himself, is a question not presented by the assignments of error, and therefore not decided. In Berry v. Chamberlain, 24 Id. 463, the Supreme Court held that where under a claim of property the right of property is tried, the verdict is conclusive for all purposes as between the claimant and the plaintiff in execution. So far as we are reminded, this question lias not yet been passed upon by this court.”

ETor do we find any case in which it has been passed upon by the Supreme Court. The object of the statute, however, appears to be fairly clear. It is intended for the protection of the claimant by enabling him through the service of claim of property in due form to secure a reasonable delay of the sale and a right, if he chooses to exercise that right, of trying the title before a jury in a summary way; and it is intended for the protection of the constable in case the claim is not followed up by a trial, by barring in such case any action after the sale as against the constable. But we find nothing, either expressly or by implication, in the act which is intended to preclude the claimant from bringing an action against others than the constable for the recovery of the property or its value.

The fundamental rule in this state with respect to judicial sales under execution is that the purchaser takes such title as the officer is in a position to convey by virtue of the proceedings; and the doctrine of caveat emptor applies in full force, and the invariable practice in such sales is to offer simply the right, title and interest of the defendant in execution.

Under these circumstances, to say that the act of a claimant to the property in formally asserting that claim by notice served on the officer is to have the effect, in cases where the right of property has not been subsequently tried out before a jury, of barring the assertion of the claim not only as against the officer but as against any other person found subsequently in possession of the property, is in our view stretching the statute far beyond its plain intent. We deem it competent for such claimant, whether plaintiff or defendant, in an action for replevin or trespass, to set up his claim as against any other person but the officer that made the sale. Consequently the trial court was in error in excluding the testimony of Mrs. Bock as to her ownership, and for this reason the judgment must be reversed and a new trial had.  