
    No. 208
    WEBSTER, Sheriff, et v. EDWARDS
    No. 19586.
    Supreme Court
    On motion to certify.
    Dock. Jan. 20, 1926;
    4 Abs. 72.
    1025. REPLEVIN — May a mortgagee under a chattel mortgage replevin the property covered by the mortgage from a sheriff who has made a levy on said property when the mortgage is not filed in the county of the mortgagor’s residence as provided by 8561 GC.?
    Attorneys — Albert H. Scharrer, Pros. Atty., and Ralph E. Hoskot, Ass’t. Pros. Atty., for Sheriff; Egan & Delseamp for Company; Mat-tern, Brumbaugh & Mattern for Edwards; all of Dayton.
   William T. Edwards brought this action originally for replevin of an automobile in the Montgomery Common Pleas against Howard E. Webster, Sheriff of Montgomery County, and the Cappel Furniture Co.

It appears that one Alex Zupnick purchased an automobile from Edwards for which he executed and delivered notes for the purchase price and secured the same by a chattel mortgage. It was stipulated in the mortgage that Zupnick was not to move from a certain address in Dayton without the written consent of Edwards. The mortgage was filed in Butler County and not in Montgomery County, the automobile being purchased in Butler County.

Subsequently the Cappel Furniture Co. of Dayton secured a judgment against Zupnick, by virtue of which a levy was made on the automobile at Zupnick’s residence in Dayton, Zupnick being appointed custodian of the car with specific orders that it should not he removed. In violation of this trust the car was driven to Middletown. Zupnick was thereupon cited for contempt and in this proceeding the sheriff was ordered to effect the return- of the car.

The sheriff of Butler County obtained the machine and delivered it to the sheriff of Montgomery County, whereupon another levy was made upon the car. The court ordered the car sold and the proceeds from the sale paid into court, which order was not modified. The Common Pleas held that Edwards was entitled to the possession of the car and pursuant to an appraisal of $900 Edwards elected to take the money in lieu of the automobile, whereupon judgment for this amount was rendered against the defendants. This judgment was affirmed by the Court of Appeals.

The Sheriff and Furniture Co., in the Supreme Court, contend:

1. That a levy on the car was made before it was removed to Middletown and therefore Edwards could not- replevin it from the sheriff.

2. That it would be necessary for Edwards to repossess the car before a levy was made in order to maintain an action in replevin.

3. That the mortgage was void because it was not filed with the recorder in the county in which the mortgagor resided, as provided by 8561 GC.  