
    LORAIN CO FINANCE CO v SAMAHA et
    Ohio Appeals, 9th Dist, Lorain Co
    No 742.
    Decided Nov 29, 1935
    O’Toole & Pincura, Lorain, for plaintiff in error.
    Levin & Levin, Lorain for defendant in error.
   OPINION

PER CURIAM

The evidence introduced upon behalf of the plaintiff established beyond peradventure that the property sought to be replevied was in the possession of the plaintiff at the time the action was brought, and at the close of plaintiff’s evidence a motion was made by defendant Samaha for judgment in his favor, on the ground that the property was not in his possession at ¿he time the action was begun.

It appearing by the evidence that the plaintiff had possession of the property, or the proceeds arising from the sale or trade qf a portion thereof, at the time the action was begun, and also at the time the case was heard, it is evident that it could not maintain its action to obtain possession of property then in its possession, inasmuch as replevin is basically a possessory action.

The motion for judgment which had been made at the end of plaintiff’s case, was renewed at the close of all of the evidence, and again overruled, to which exception was taken.

We hold that the motion of the defendant Samaha, made at the close of plaintiff’s evidence and renewed at the close of all of the evidence, should have been sustained, for the reason that plaintiff could not maintain an action to recover possession of property which was already in its possession.

The judgment will therefore be reversed in toto, at the costs of the Lorain County Finance Co., and this court, proceeding now to render the judgment which the trial eourt should have rendered, orders that the petition of the Lorain County Finance Co. be dismissed, at its costs.

FUNK, PJ, STEVENS and WASHBURN,

JJ, concur in judgment.  