[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 687 An action of detinue was begun by W.H. Burns against W.H. Adams on August 24, 1933, by filing a praecipe for summons adrespondendum.
The declaration, which was filed September 4, 1933, was the usual statutory declaration, see Section 4314 C.G.L., declaring substantially that defendant did, on July 14, 1933, detain from plaintiff a certain tugboat called the "Vida D," together with certain equipment, valued at $2500.00; a *Page 688 lighter approximately 20x60 feet, equipped with a 15,000-gallon tank and other equipment, valued at $1200.00; a lighter approximately 22x70 feet, named the "Iwanowski" together with certain equipment, valued at $600.00.
To this declaration, the defendant filed eleven pleas as follows: (1) a plea of not guilty; (2) a formal plea of nondetinet in the past tense; (3) a formal plea of non detinet in the present tense; (4) a formal plea of non detinet in both the past and the present tenses; (5) a plea based on the distress proceedings had in the Civil Court of Record wherein the Florida Fish and Produce Company was plaintiff and Jacksonville Machine Dry Dock Company and W.H. Burns were defendants, raising the question of the jurisdiction of the Circuit Court over the res at the commencement of the action, and showing possession of the property to be in the Sheriff, a third party; (6) a plea similar to the fifth but plead puis darrien continuance and being based on the writ of execution and the sheriff's return thereon in the case of Florida Fish Produce Company against Jacksonville Machine Dry Dock Company, in the civil Court of Record; (7) a formal plea denying property of the plaintiff in the goods; (8) a formal plea denying property of the plaintiff in the goods on July 14, 1933, and at all subsequent times; (9) a special plea setting up the two-year statute of limitations, Section 5778 C.G.L.; (10) a special plea setting up the two-year statute of limitations, Section 5778 C.G.L., and also setting up the distress writs and the returns of the sheriff thereon in the case of Florida Fish Produce Company against Jacksonville Machine Dry Dock Company, in the Civil Court of Record; (11) a special plea puis darrien continuance setting up not only the two-year statute of limitations, Section 5778 C.G.L., but also the writ of execution *Page 689 and the sheriff's return thereon in the case of Florida Fish Produce Company against Jacksonville Machine Dry Dock Company in the Civil Court of Record.
Plaintiff's demurrer to the fifth, sixth, ninth, tenth, and eleventh pleas was sustained by the court.
Defendant's motion that he be allowed to refile his amended fifth and sixth pleas was denied by the court.
Defendant's motion that he be allowed to refile his second amended ninth, tenth and eleventh pleas, and an original twelfth plea, which set up the estoppel of plaintiff, W.H. Burns, to bring this action due to his participation in the case of Florida Fish Produce Company against Jacksonville Machine Dry Dock Company, in the Civil Court of Record, was denied by the court. Further, in said order, the court of its own motion struck the first plea of not guilty.
Defendant's motion for leave to file a third amended tenth plea as well as an original thirteenth plea, which was a plea in abatement to the effect that the property was lawfully levied upon by the sheriff and had been placed with the Florida Fish Produce Company as his bailee; that no demand prior to institution of the action had been made on defendant; that the sheriff was still living, was still sheriff and resident within the jurisdiction, was denied by the court.
Defendant made another motion that he be allowed to file his third amended tenth plea by interlineation instanter, which motion was denied by the court.
Defendant made a motion, before trial, to quash the venirefacias and the special venire. The court denied the motion.
Trial was had upon the issues as made by the pleadings. The case went to trial upon three pleas denying detention *Page 690 2d 3rd and 4th) and two pleas denying property in the plaintiff (7th and 8th).
After introduction of the evidence, upon hearing the argument of counsel and the instructions of the court to the jury, the jury returned a verdict in favor of plaintiff, in which it valued the "Vida D" at $1,500.00, one of the lighters at $600.00 and the other lighter at $1,000.00; and found that damages due to the detention were $3,213.00.
Final judgment was entered upon the verdict.
Defendant filed a motion for a new trial, a motion in arrest of judgment, a motion for a venire facias de novo and a motion for repleader, all of which were denied by the court, on condition that a remittitur of $400.00 on the value of the lighter assessed at $1,000.00 be entered by the plaintiff.
Plaintiff entered the remittitur of $400.00 as provided in the order of the court, after which an amended judgment for plaintiff was entered, to which defendant took this writ of error.
It appears from the record that on June 9, 1933, the Florida Fish Produce Company, of which W.H. Adams was President, brought a distress action against the Jacksonville Machine Dry Dock Company, in the Civil Court of Record. An original distress writ was issued and levied upon certain property including the two lighters involved in this litigation. This property being deemed insufficient to meet the amount claimed, an alias writ was issued and levied upon the tug-boat "Vida D." Then a pluries writ was issued not only against the Jacksonville Machine Dry Dock Company but also against W.H. Burns as defendants and levied on all the property theretofore levied upon. On July 24, 1933, W.H. Burns filed a claim affidavit alleging that the tug-boat "Vida D," which, he alleged, *Page 691 had been levied on by the sheriff, belonged to him. On August 18, 1933, W.H. Burns filed a defense affidavit swearing that the rent as claimed in plaintiff's affidavit was not due. The distress proceeding came to trial August 21, 1933, and W.H. Burns moved, on technical grounds not here important, to quash the pluries writ and dismiss the cause as to himself, which motion the court granted as to Burns "without prejudice." The court also, on Burns' motion, allowed him to withdraw the claim affidavit that he had filed in the cause. Judgment in that cause was entered in favor of the Florida Fish Produce Company against the Jacksonville Machine Dry Dock Company. Execution issued on that judgment September 6, 1933, and was levied upon all of the property which had been levied upon under the distress writs together with certain other personal property. The property was sold at public sale on September 22, 1933. Dan Burns, the brother of W.H. Burns, was the highest bidder, but was unable to raise the money to cover the bid within three days after the sale and, according to agreement between the parties, the property was sold to the next highest bidder at the sale, the Florida Fish Produce Company, for $1,450.00.
The record further shows that the tug-boat "Reyner" which was later renamed the "Vida D," was manufactured by J. Reyner Sons, Inc., of Newport News, Virginia, who sold it to J.E. Iwanowski of Jacksonville, Florida, who sold it to W.H. Burns on November 17, 1930. Ownership of the two lighters involved in this litigation was also claimed by Burns. The tug-boat and lighter accounts were kept in the books of the Jacksonville Machine Dry Dock Company, of which Burns was President, and the ledger of that company, covering the boat and lighter accounts, showed debits of $9,598.52 and credits of $18,491.36, thus showing *Page 692 an apparent profit to the company of nearly $9,000.00. This was attempted to be explained by plaintiff by saying that it was money advanced by him to the Company on Saturdays to meet payrolls.
The return on the original distress writ showed that the property levied on was placed in the custody of the Florida Fish Produce Company, of which W.H. Burns was President. The return on the alias distress writ failed to show that the property levied on was placed in the custody of anyone. The pluries distress writ showed that the property levied on was placed in the custody of W.H. Adams. But the record as a whole satisfactorily shows that the property levied upon was, by the sheriff, placed in the custody of either the defendant Adams or the Florida Fish Produce Company of which he was president, as the bailee of the sheriff.
Inasmuch as there was evidence to the effect that W.H. Burns was, until sometime in 1933, hauling petroleum products for the Gulf Refining Company with the tug-boat "Vida D" and the two lighters, there was no conclusive showing that the "Vida D" and the two lighters had remained in the possession and control of the defendant in the distress writs for two years in such sort as to permit the defendant in the detinue case to invoke the provisions of Section 5778 C.G.L. But that is not a controlling consideration on this writ of error, as will later appear, nor is the question of the constitutionality of Chapter 16,058 properly presented for our consideration here.
Detinue is, generally speaking, the common law equivalent of a suit in replevin. Phillips Company v. Wagner, 115 Fla. 631,155 So. 842. While statutory replevin in practice supplanted it, the action of detinue is not, as a matter of law, obsolete in this State. It has never been abolished by *Page 693 the Legislature. Per contra, as pointed out by Professor Crandall, the statutory form for "wrongful detention of property" by practice adopted in replevin, is the identical form set out for detinue in schedule B, form 29, of the English Common Law Practice Act of 1852. See Section 4314 C.G.L. It is therefore probable that the Legislature intended this form for detinue rather than replevin. See Chapter 1096, Acts of 1861. And Circuit Court Rule 70 is a distinct recognition of the action by this Court. Many states, including Alabama, have adopted statutory procedure for detinue cases quite similar to ours for replevin, but with us detinue is a purely common law action. Florida cases involving detinue, directly or indirectly, are Summerall v. Thomas, 3 Fla. 398; Thornton v. Eppes, 6 Fla. 546; Hendry v. Clerdy, 8 Fla. 77.
In order to maintain the action to detinue the plaintiff musthave the right to immediate possession of the property at thetime the action is instituted, the defendant must have been in the wrongful possession of the goods at some time prior to commencement of the action; the goods must be capable of identification and must be in ease at the time the action is brought. The plaintiff may institute the action without giving bond. See Crandall's Florida Common Law Practice 552, 553, 554; IV Minor's Institutes 540. The gist of the action of detinue isthe wrongful detention. See Crandall's Florida Common Law Practice 553; Bullen Leake Precedents (3rd Ed.) 311, 728; IV Minor's Institutes 539, 706 (italics supplied); 9 R.C.L. 148 etseq.; 18 C.J. 987, et seq.; 6 Encyc. P. P. 643.
The second question is whether plaintiff, at the commencement of his action, had a valid cause of action in detinue in the Circuit Court.
The record shows that in the case of Florida Fish *Page 694 Produce Company against the Jacksonville Machine Dry Dock Company and W.H. Burns, in the Civil Court of Record, valid distress writs were issued and levied upon the property involved in this suit with the exception of a certain Niagara pump. The pluries distress writ was quashed as to defendant W.H. Burns on August 21, 1933; and the final judgment was entered against the Jacksonville Machine Dry Dock Company on August 22, 1933. Execution issued on that judgment September 6, 1933. On August 24, 1933, plaintiff instituted his action in detinue in the Circuit Court. At that time, final judgment in the case involving this property in the Civil Court of Record had been rendered, but execution had not been issued thereon and the property had not been sold at legal sale, and it was still in the custody of the sheriff under legal process of the Civil Court of Record.
When property is seized under a distress writ and is in the possession and control of the sheriff, it may be considered as incustodia legis, ex parte Fuller, 99 Fla. 1165, 128 So. 483, and any interference with that property amounts to contempt of court. Hooker v. Wiggines, 104 Fla. 355, 139 So. 803.
Property once levied upon remains in the custody of the law and is not liable to be taken by another execution in the hands of an officer of another jurisdiction. Hagen v. Lucas, 35 U.S. 400,9 L. Ed. 470. When property has been seized by an officer of the court under valid process, that property is in the custody and under the control of that court for the time being; and no other court has a right to interfere with that possession unless it has direct supervisory control over that court or unless it has some superior jurisdiction in the premises. Buck v. Colbath,70 U.S. 260, *Page 695 18 L. Ed. 257; Lammon v. Feusier, 111 U.S. 17, 4 Sup. Ct. 286,28 L. Ed. 337.
The status of property seized by legal process, as to third parties, is fixed by the return thereon, and the status of that property can be changed only by an order of court. Property once placed in custodia legis will remain there, by operation of law, until it is withdrawn by order of a competent court. McFarland Carriage Company v. Solanes, 108 Fed. 532.
When a court of competent jurisdiction takes possession of property through its officers, this withdraws the property from the jurisdiction of all other courts, which, though of concurrent jurisdiction, may not disturb that possession; and the court acquiring original jurisdiction is competent to hear and determine all questions respecting title, possession and control of the property. Isaacs v. Hobbs Tire Timber Co., 282 U.S. 734,51 Sup. Ct. 270, 75 L. Ed. 645. See also Wade v. Clower, 94 Fla. 817, 114 So. 548, 551.
At the time of the institution of the action of detinue in the Circuit Court, the property sought to be recovered was still under the jurisdiction of the Civil Court of Record, as the property had not at that time been released in any manner from the custody of that court, but continued under the original distress levies and the judgment of the Civil Court of Record; and the Circuit Court was without jurisdiction to proceed as to the property involved.
If the detinue suit had been instituted against the sheriff, or Adams as his bailee, the question would have been substantially the same as here.
Although there is some contrary authority, the better rule seems to be that where the property of one who was not named in the writ has been levied upon under a writ *Page 696 valid on its face such party cannot maintain an action of replevin or detinue to recover that property while it remains incustodia legis. See Peck v. Jennes, 47 U.S. 612, 12 L. Ed. 841; Gumbel v. Pitkin, 124 U.S. 131, 8 Sup. Ct. 379, 31 L. Ed. 374; Ilsley v. Stubbs, 5 Tyng. (Mass.) 280. The possession of the sheriff's bailee or custodian, is the possession of the sheriff; and so the property is still in custodia legis. Cushman v. Boston Storage Warehouse Co., 207 Mass. 407, 93 N. Ed. 693; Ex parte Fuller (Fla.) supra; Kyle v. Swem, 99 Ala. 573, 12 So. 410; Hammock v. Wright, 17 Ala. App. 890, 85 So. 824.
A stranger may not recover, by an action of replevin or detinue, property that has been wrongfully levied upon. For if such an action may be maintained by a stranger whose property is taken in execution out of his possession, on the principle that it is wrongfully taken, it follows that the same action may be maintained for an equally wrongful taking by a stranger from a third person; and so on for an indefinite number of times. However, in such case the right to maintain an action for recovery of the property in specie does not depend upon whether it was wrongfully taken, but on whether it was in the custody of the law; and that once established, possession cannot be disturbed, but the injured party is left to seek his remedy by an action of trespass or trover, or to wait until the goods are sold and bring an action of replevin or detinue for them against the purchaser, in whose hands they cease to be in the custody of the law. Cromwell v. Owings, 7 Har. J. (Md.) 55; Powell v. Bradlee Co., 9 Gill J. (Md.) 220; Buck Colbath, supra, or he may make application to the court having lawful custody of the property to be permitted to come in and set up his claim to the property. See Weiner v. Van Rensselaer, 43 N.J.L. 547. *Page 697
Our statutes make no provision for any stranger to the writ by which property was seized to replevin that property or to recover it in an action of detinue. Thus detinue was not, under the circumstances of this case, maintainable against the sheriff, the sheriff's bailee or the president of the sheriff's bailee.
The fourth question propounded is whether the plaintiff was, by his participation in the suit in the Civil Court of Record between the Florida Fish Produce Company and the Jacksonville Machine Dry Dock Company, estopped or precluded from bringing this action of detinue.
The evidence shows that plaintiff W.H. Burns was aware of the distress proceedings. He filed his claim affidavit to try the right of title to the tug-boat "Vida D," and after proceeding and pleading to the merits of the case, was, upon his own voluntary motion, dismissed as a party "without prejudice." After that trial began, he, by leave of court, withdrew his claim affidavit, and stood by and saw judgment rendered against his Company, the Jacksonville Machine Dry Dock Company.
The Civil Court of Record was the only court that had jurisdiction of the subject matter, and the only court in which W.H. Burns could, at the time the action of detinue was instituted in the Circuit Court, have interposed a claim to the property. And at that time he could not lawfully have instituted in the Circuit Court, which had no jurisdiction over the property, an action in detinue. Aside from the question of estoppel, he was therefore precluded from bringing this action.
Under the disposition made of this case, it becomes unnecessary to discuss the two remaining questions presented.
In view of the fact that the property in litigation was, at the time of the institution of the action in detinue in the *Page 698 Circuit Court, in custodia legis and under the jurisdiction of the Civil Court of Record; and as W.H. Burns could not, under the circumstances, resort to detinue, but was confined to asserting whatever rights he may have had in or to the property in the Civil Court of Record, the judgment entered in this case in the Circuit Court must be vacated.
Reversed with directions to vacate the judgment.
WHITFIELD, C.J., and DAVIS, J., concur.
ELLIS, P.J., and TERRELL and BUFORD, J.J., concur in the opinion and judgment.
ON PETITION FOR REHEARING.