procured the possession of the property. Hulman v. Benighof (1890) 125 Ind. 481, 25 N. E. 549 (action dismissed by trial court upon default of plaintiff, and judgment for return of property entered as part of the judgment of dismissal,-a judgment the supreme court held there was no power to render); Peffley v. Kenrick (1891) 4 Ind. App. 510, 31 N. E. 40; Lapp v. Ritter (1898) 88 Fed. 108 (decided under Indiana law; in this case the complaint had been put in issue by the filing of an answer).

In Crist v. Francis (1878) 50 Iowa, 257, the court stated that, in the absence of statute, the defendant in the replevin action would have been required to bring action on the replevin bond, or recover the property by an action for that purpose. But see Hall v. Smith (1859) 10 Iowa, 45, supra.

No such judgment can be rendered where the plaintiff has dismissed his action before a finding is announced by the court or a verdict returned by the jury. Wiseman v. Lynn (1872)

39 Ind. 250.

No such judgment can be rendered where, at the time of dismissal, the defendants have not been served and have entered no appearance. Thus, in Frost v. Harzfield (1886) 20 Ill. App. 660, it was held that, on dismissal by the plaintiff of a replevin action, in which the property had been taken on the replevin writ, the court had no authority to order a retorno habendo and enter judgment of damages for detention of the property in favor of defendants, on whom there had been no service, and in whose favor no appearance had been entered. But see American Preservers Co. v. Bishop, infra, IV.

When a cause has been dismissed with the permission of the court it is no longer pending; consequently, no judgment can be rendered therein, other than a judgment for costs. Wiseman v. Lynn (Ind.) supra. No statute was in force as at the time of the decision in Mikesill v. Chaney, infra, IV.

That no judgment for a return of the property or its value can be rendered has been held true, even if de

fendant has pleaded in the action. McIlvaine v. Holland (1849) 5 Harr. (Del.) 226. (Discontinuance after reversal upon appeal. It seems a statute prescribed this judgment).

The remedy of the defendant is an action on the replevin bond (McIlvane v. Holland (Del.) supra), or an independent action to recover the property.

In some cases the right of the defendant to a judgment for a return or its value is made to depend upon proof of his right thereto. In one case in which the court rendered a judgment for the defendant for a return of the property and costs, but refused to render judgment in the alternative for the value of the property if a return could not be had, the defendant appealed from the refusal to render judgment in the alternative for the value of the property. In discussing the question the court states that, upon a dismissal of the action, the defendant was entitled to judgment of. dismissal with costs, that "this much followed as a necessary consequence of the respondent's inability and failure to proceed to the trial of the case. But his right to judgment for a return of the property, or for the value if a return could not be had, was not established by such failure on the part of the respondent. It was incumbent on him to establish such right affirmatively. In this respect he was the actor and, in as much as no proof was offered by either party, this question must be determined upon the pleadings alone." The court, having found that the defendant failed to show the ownership and right to possession in himself, concludes that he "was not entitled to the judgment for the value, which he demanded from the court below." Capital Lumbering Co. v. Hall (1882) 10 Or. 202.

IV. Statutes prescribing form of judgment.

The judgment that may be rendered upon the dismissal of a replevin action by the plaintiff, who has procured possession of the property, is regulated by statute in a number of states. Some statutes expressly provide that, upon dismissal or nonsuit, judgment

servers' Co. v. Bishop (1900) 184 Ill. 68, 56 N. E. 382. The failure to enter the formal judgment on the record, however, is not fatal to the validity of the proceeding, where, before appeal is taken, the record is amended so as to show a proper entry of judgment.

The issuance of a writ of retorno prior to the entry of an express judgment that the property be returned to the defendant, although not particularly formal, is good in substance under such a statute, especially where a statute relating to procedure provides that no judgment shall be reversed in the supreme court for mere error in form. American Preservers' Co. v. Bishop (1898) 83 Ill. App. 493, affirmed in (1900) 184 Ill. 68, 56 N. E. 382, upon the ground that judgment for a return of the property had in fact been rendered, where an amended record was filed showing this fact.

In Mikesill v. Chaney (1854) 6 Ind. 52, where the plaintiff at the close of his evidence suffered a nonsuit, it was held, under a statute providing that upon a nonsuit of the plaintiff the defendant is entitled to a return of the goods and shall have judgment and execution therefor, that a fair construction of the statute gave the defendant below the right to show the court that he was entitled to the goods, and that upon such showing the court ought to have entered judgment in his favor for the same; that the object of the statute was to give the defendant the right to have the merits of the cause disposed of while it was yet in court.

Where, upon the plaintiff being nonsuited, a jury is impaneled in pursuance of the statute to inquire into the right of property and right of possession of the defendant to the goods and

chattels in controversy, the plaintiff is entitled to offer testimony to prove ownership of the property in himself. Harman v. Goodrich (1847) 1 G. Greene (Iowa) 13.

Under a statute providing that if the plaintiff, without replevin, fail to prosecute his suit with effect and without delay, the justice or jury shall assess the value of the property taken and damages for the use of the same, and in such case the judgment shall be against the plaintiff and his sureties, that he return the property taken or the value so assessed, and also pay double the damages assessed for the detention of the property, it has been stated that the law presumes the title to be in the defendant, who had possession before the suit, where the plaintiff fails to prosecute. Rickner v. Dixon (1850) 2 G. Greene (Iowa) 591.

Under a similar statute in Smith v. Winston (1847) 10 Mo. 299, the defendant was held entitled to a judgment for the return of the property or its value, where the plaintiff, upon his demurrer to a special plea of the defendant being overruled, took a nonsuit. This case is approved in Maids v. Watson (1850) 13 Mo. 544.

In Reed v. Wilson (1850) 13 Mo. 28, it is stated that, upon the plaintiff in replevin taking a nonsuit, the court should assess damages to the defendant.

The plaintiff in a replevin suit cannot, by a discontinuance of the action or by suffering a nonsuit, prevent a judgment being rendered against him for damages, or for the return of the property. Berghoff v. Heckwolf (1858) 26 Mo. 511 (dictum).

It has been held that the right of the defendant to a judgment for a return of the property or its value does not depend upon his answer, but upon the plaintiff's failure to prosecute his action. Fallon v. Manning (1864) 35 Mo. 271. In this case the plaintiff failed to appear when the . case was called for trial, and the court proceeded to assess the value of the property and the damages sustained by the defendant, and gave judgment for the return of the property or for

its assessed value. Subsequently, the plaintiff's counsel contended that the answer was insufficient to justify the court in rendering a judgment for the defendant for any sum whatever, much less for the whole value of the property taken.

In Ranney v. Thomas (1869) 45 Mo. 111, it was held that a plaintiff to whose petition a demurrer was sustained, and to whom leave was granted to file an amended petition, could not thereafter dismiss his suit without having a judgment rendered against him for the return of the property or its value.

After the dismissal of the suit, the plaintiff, who is a stranger to the title to the property taken, cannot litigate against the sheriff from whom the property was taken, and who held it on execution against third parties, the title of the execution debtor, and prevent the assessment of more than nominal damages, on the ground that the defendant had no title or interest. Nelson use of Haenschen v. Luchtemeyer (1871) 49 Mo. 56.

The application of this statute is not prevented by the fact that plaintiff and defendant in the replevin action are husband and wife. Beagles v. Beagles (1902) 95 Mo. App. 338, 68 S. W. 758.

In Brannin v. Bremen (1880) 2 N. M. 40, it is stated that the New Mexico statute is copied from the Missouri statute and, in accordance with the rule of the Missouri cases, the New Mexico court holds that the plaintiff in the replevin suit cannot, by a discontinuance of the action or by suffering a nonsuit, prevent a judgment being rendered against him for damages, or for a return of the property. In an early case in this jurisdiction it was held that, where the defendant has not pleaded in a replevin action, trial cannot be had under the statute, but judgment should be entered. in accordance with the provisions of the statute. Elsberg v. Maurin (1867) 9 N. M. 645, 43 Pac. 690. See the reported case (ENFIELD V. STEWART ante, 196), for comment on this case. See Pee Dee River Lumber Co. v. 2 A.L.R.-14.

Fountain (1911) 90 S. C. 122, 72 S. E. 885, supra.

Under the statute governing Rosenberg v. Flack (1890) 32 N. Y. S. R. 449, 10 N. Y. Supp. 759, where the defendant in an action of replevin recovered judgment by discontinuance, a part of that judgment was for the return of the goods and chattels replevied, unless he elected to waive such return and take judgment for the value of the property.

In Lamkin v. Rosenthal (1896) 5 App. Div. 532, 39 N. Y. Supp. 483, it is stated that the plaintiff in a replevin action cannot be allowed to use the action to take goods away from defendant's possession, and then, by discontinuing the action, deprive him of the means of establishing his title and of the judgment of the court restoring them to him; that the defendant has the right and must be allowed to take the verdict of a jury upon the question of his ownership of the goods. No statute is referred to in this connection.

See Jumeau v. Brooks (1901) 48 C. C. A. 397, 109 Fed. 353, supra.

Some statutes authorize the court, notwithstanding the dismissal, on application of the defendant, to inquire into the right of property and possession, and compel delivery thereof to the party entitled thereto, by attachment or otherwise. Such a statute governed the decision in McVey v. Burns (1875) 14 Kan. 291; Higbee v McMillan (1877) 18 Kan. 133; Thomas v. First Nat. Bank (1912) 32 Okla. 115, 12 Pac. 272, Ann. Cas. 1914A, 376. The statute statute governing Malsby v. Gamble (1911) 61 Fla. 310, 54 So. 766, provided that when it shall appear upon the nonsuit of the plaintiff, qr upon trial, or otherwise, that the defendant is entitled to the goods, and the goods have not been redelivered to the defendant, the judgment shall be entered up against the plaintiff for possession of the property, and against him and his sureties for the value thereof and costs.

A defendant who proceeds under such a statute, and is successful, may have an order for the return of the property or its value. Higbee v. Mc

Millan (1877) 18 Kan. 133; Thomas v. First Nat. Bank (1912) 32 Okla. 115, 121 Pac. 272, Ann. Cas. 1914A, 376; Roberts v. Wilkins (1913) 40 Okla. 138, 137 Pac. 111.

Under such a statute it is held, in Nebraska, that the plaintiff in a replevin action cannot. dismiss and defeat the right of the defendant to this trial of the right of property and a judgment for its return or its value, in case it is adjudged to him. Ahlman v. Meyer (1886) 19 Neb. 63, 26 N. W. 584; Garber v. Palmer B. & Co. (1896) 47 Neb. 699, 66 N. W. 656; Vose v. Muller (1896) 48 Neb. 602, 67 N. W. 598; Saussay v. W. J. Lemp Brewing Co. (1897) 52 Neb. 627, 72 N. W. 1026; Houck v. Linn (1898) 56 Neb. 743, 77 N. W. 51; Reid, M. & Co. v. Panska (1898) 56 Neb. 195, 78 N. W. 534; Morrill v. McNeill (1901) 1 Neb. (Unof.) 651, 91 N. W. 601.

Under such a statute it has been held that a plaintiff in a replevin action cannot dismiss his suit without prejudice before its final submission to the jury, since such dismissal would be an idle ceremony, for the defendant would then have the right to proceed under the statute to have the right to the property tried. Aultman v. Reams (1880) 9 Neb. 487, 4 N. W.

81.

That, upon dismissal of an action in replevin, the defendant is entitled to have the right of property determined, is held in Moore v. Herron (1885) 17. Neb. 697, 24 N. W. 425.

A plaintiff, having obtained possession of property under a replevin action, cannot be permitted to escape liability by dismissing his action. Cook v. Vaughn (1901) 1 Neb. (Unof.) 244, 95 N. W. 333.

An early Tennessee statute provided that upon the failure of the plaintiff to prosecute his suit for any cause whatever, without first having returned the property replevied to the defendant and satisfied him for the detention, the court shall impanel a jury to ascertain the value of such property and damages for the seizure and detention thereof. When the jury has so found, the court shall give

judgment that the plaintiff return the property to the defendant and pay the damages assessed, or, on his failure to return the property, that the defendant recover of the plaintiff its value and damages, and that execution issue accordingly. Nashville Ins. & T. Co. v. Alexander (1849) 10 Humph. (Tenn.) 378.

See Crist v. Francis (1878) 50 Iowa, 257, supra.

to

When a suit of replevin has been dismissed for lack of jurisdiction upon motion of the defendant, it has been held that the defendant is not entitled have the right of property determined and a judgment for the return thereof or its value rendered in his favor. State ex rel. Savage v. Letton (1898) 56 Neb. 158, 78 N. W. 533; Reid, M. & Co. v. Panska (1898) 56 Neb. 195, 78 N. W. 534; Bolin v. Fines (1900) 60 Neb. 443, 83 N. W. 740. On the contrary, it has been held, upon a suit in replevin being dismissed upon defendant's motion, that the defendant is entitled to a judgment for the value of the replevied property, under a statutory provision that, if plaintiff fail to establish his right to the property, the defendant shall recover such damages as under the circumstances he shows himself entitled to. Funk v. Israel (1857) 5 Iowa, 438.

In some cases statutes that do not expressly regulate this matter have been looked to as indicating the policy of the law. In Glenn v. Porter (1900) 68 Ark. 320, 57 S. W. 1109, under a statute providing that the plaintiff may dismiss any action in vacation on the payment of costs, except an action to recover the possession of specific personal property when the property has been delivered to the plaintiff which is stated to show the policy of the law, it is held that a judgment rendered as a part of the order directing a nonsuit, that the property or its value be returned to the defendant, is not void.

In Sanderson v. Lace (1849) 2 Pinney (Wis.) 257, the defendant, upon a discontinuance by the plaintiff, waived a judgment for the return of the property and elected to take his judgment