Plaintiff in error brought this action in replevin in the county court of Kingfisher county against the defendant in error for a cow, calf, a wagon, a set of double harness, and a saddle, in possession of the latter as sheriff of said county, and appealed from a judgment sustaining a demurrer to his petition therefor and denying his right to recover thereon. After this case was brought into this court the plaintiff in error died; and on September 25, 1913, this case was duly revived in this court in the name of Lee Taylor, administrator of the decedent's estate, as plaintiff in error, following such revivor in the trial court.
The essential facts, when not stated, are necessarily presupposed by this opinion, and will therefore be understood.
Under the fifth subdivision of section 4055, St. Okla. 1893 (section 4799, Rev. Laws 1910), a replevin action will lie against a sheriff who, acting under a writ of execution to satisfy a personal judgment for debt against the plaintiff and in favor of a third party, is wrongfully in possession of personal property owned by and exempt to the plaintiff as the head of a family residing in this state under section 2860, St. Okla. 1890, as amended by Sess. Laws 1905, p. 255 (section 3342, Rev. Laws 1910); and if, as asserted (without any denial) in brief duly filed for plaintiff, the demurrer was sustained upon the ground that the property, being in custodia legis in another action, in which motion to discharge might have been made, could not be retaken in this distinct action for replevin, the trial court is in error. Irwin v. Walling,4 Okla. 128, 44 P. 219; Blair v. Shew, 24 Kan. 280;Wetsenberger v. Wheaton, 8 Kan. 169; 34 Cyc. 1368, 1369.
The defendant in error has neither filed brief nor otherwise appeared in this case in this court, and no ground upon which the trial court might properly have sustained the demurrer is apparent upon such search of the record as we have made; and, for the reasons stated, the judgment should be reversed *Page 405 and the case remanded, with instructions to overrule the demurrer and observe this opinion in further proceedings in this case.
By the Court: It is so ordered.