Benjamin v. Smith

Decided April 11, 1890

Supreme Court of Minnesota · decided 1890-04-11

Action brought in the district court for Eice county, the complaint alleging that since the decease of John Doyle, plaintiff’s intestate, the defendant, in Eice county, wrongfully and unlawfully took possession of certain described personal property, of the value of $600, owned by the decedent at the time of his death, and of which the plaintiff, as administrator, is entitled to immediate possession, and that the defendant now wrongfully detains the property at Le Sueur…

Cited by 2 later decisions — most recently July 1919

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1890-04-11

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Gilfillan, C. J.

¶1The action .for possession of personal property is commenced by the service of summons, as other actions are, and not, as was the former action of replevin, by writ requiring a seizure of the property. The statute (Gen. St. 1878, c. 66, § 132) leaves it optional with the plaintiff to claim an immediate delivery at the time of issuing the summons, or after that and before answer, or to waive that, and let the action proceed, the possession to be obtained upon execution after judgment. The character of the action is determined by the complaint, and not by the plaintiff claiming, or failing to claim, immediate delivery. If he waive his right to an immediate delivery, the action is not thereby changed to one for conversion merely. The action was therefore properly triable in the county of Bice, and the court correctly denied the motion for a change of venue. The evidence justified the verdict.

¶2Judgment affirmed.