
    CONSOLIDATED AMUSEMENT COMPANY, LIMITED, AN HAWAIIAN CORPORATION, v. WILLIAM P. JARRETT, HIGH SHERIFF OF THE TERRITORY OF HAWAII.
    Appeal prom District Magistrate op Honolulu.
    Submitted March 29, 1915.
    Decided May 13, 1915.
    Robertson, C.J., Watson and Quarles, J.J.
    
      Replevin — right of possession — evidence.
    In an action of replevin for goods and chattels alleged to have been unlawfully taken and detained, where plaintiff proves ownership and possession at the time of the alleged unlawful taking he has made out.a prima facie case, and the burden of proving any special right of possession in himself is on the opposite party. Same — same—justification.
    Where a sheriff or party seeks to justify the taking of personal property by virtue of an execution issued upon a judgment, the judgment record and execution must be produced and a levy shown under it.
   OPINION OP THE COURT BY

WATSON, J.

Replevin by tbe appellant for certain office furniture and chattels alleged to bave been unlawfully taken and detained from it by tbe appellee, William P. Jarrett, high sheriff of tbe Territory of Hawaii. What tbe answer was does not appear from tbe record sent up, but in tbe briefs of both counsel for tbe appellant and appellee it is stated to bave been a general denial, which, under our practice (Sec. 2369, R. L. 1915) was no doubt sufficient to permit tbe defendant to sbow tbat he had taken the property as an officer upon process. See also Wells on Replevin, Sec. 301; 20 A. & E. Ann. Cas., 299.

On tbe trial plaintiff introduced evidence tending to prove tbat it was tbe owner of tbe goods replevied and tbat sucb goods were in its possession on the................ day of November, 1914, when defendant “levied” on tbe same. There was nc evidence of tbe nature of tbe writ under wbicb tbe so-called “levy” was made. Tbe writ itself was not given in evidence nor its absence accounted for. Indeed, there was no evidence tbat the goods were taken from tbe plaintiff by the defendant, as an officer, by virtue of any writ, other than tbe incidental statement of tbe witness of plaintiff, above referred to, tbat tbe defendant on tbe date named bad “levied” on tbe goods. Tbe defendant showed no title to tbe property and in no way justified the taking, notwithstanding wbicb tbe magistrate gave judgment in bis favor. From this judgment plaintiff appealed to this .court on points of law, tbe points stated being, (1) tbe court erred in giving judgment for the defendant; (2) plaintiff having proved its ownership, possession and tbe taking of tbe property by the high sheriff of tbe Territory of Hawaii under execution, it became incumbent upon defendant to show tbat sucb taking was lawful, and this be failed to do. It is our opinion tbat tbe appellant (plaintiff below) having proved its ownership and prior possession, made out a prima facie case and tbe burden of proving any special right in himself was on tbe opposite party (tbe defendant below). Cassel v. The Western Stage Co., 12 Ia. 47, 49; Kehabian v. Adams Express Co., 27 R. I. 564; Morris v. Danielson, 3 Hill (N. Y.) 168. “Where tbe plaintiff is able to show tbat tbe defendant was taking away property of wbicb be bad just before been in possession, claiming to own it, it is sufficient, at least, to put tbe defendant upon proof of bis title or right to possession, and in tbe absence of sucb proof tbe-plaintiff will be entitled to recover.” Wells on Replevin, Sec. 109; 3 Elliott on Evidence, Sec. 2608; Ingersoll v. Emerson, 1 Ind. 76. “The admitted quiet and peaceable possession of the property by plaintiffs at the time of the seizure was prima facie evidence of title and threw the burden of proof upon the defendant of establishing the contrary.” Schulenberg v. Harriman, 21 Wall. (U. S.) 44, 59. An allegation of right of possession is proved by evidence of ownership of the property where no special right of possession- is shown in the opposite party. Cassel v. The Western Stage Co., supra.

J. A. Magoon for plaintiff.

E. A. Douthitt for defendant.

Counsel for the appellant and appellee have throughout their briefs proceeded on the idea that the evidence showed a taking by the defendant, as an officer, under a writ of execution, in which the appellant (plaintiff below) was named as defendant. This assumption is not borne out by the evidence, but assuming it to be the fact, the justification is not sustained by the evidence. “There is a distinction to be observed * * * between an action against the officer in trespass, and an action for the goods. An execution regular on its face, issued by a court of competent jurisdiction, will protect an officer in an action of trespass brought against him by .the defendant named in the writ, hut it cannot be made the basis of a claim of right to the property without proof of a valid judgment to sustain it.” Wells on Replevin, Sec. 263. A valid execution and judgment must be given in evidence. Wells on Replevin, Sec. 302; Adams v. Hubbard, 30 Mich. 104; Underhill v. Reinor, 2 Hilton (N. Y.) 319; Beach v. Botsford, 1 Doug. (Mich.) 199; 24 A. & E. Enc. L. (2 ed.) 499, 500. “Where a sheriff or other officer seeks to justify the seizure of personal property under an execution, it is essential that'upon the trial the execution be produced, or its absence accounted for.” Murfree on Sheriffs, Sec. 929; Bridges v. Layman and another, 31 Ind. 384, 386.

The judgment is reversed and the case remanded for a new trial to be not inconsistent herewith.  