x. The single proposition presented by the record is the effect of the judgment in the replevin proceeding. The court found all of the issues in favor of the defendants. What then were those issues? It is clear that among the issues were the ownership, right to the immediate possession of the goods in question, and the wrongful caption or detention of the same by the defendants. All of these issues were necessarily involved and were found against the plaintiffs by the judgment. Whether the proposition that “no replevin for property in the hands of an officer shall be brought,” as provided by section 2739 of the Compiled Laws of N. M. of 1897, was presented to the court does not appear. It is true plaintiffs so allege in their replication to the special pleas, but they made no attempt to show that such was the basis of the judgment. Whether the same would be permissible to be shown by evidence aliunde the record, we do not decide. But no such evidence was offered. This they were obligated to show in order to obtain the benefit of it. U. S. v. Bliss, 172 U. S. 321-326. ' That such proposition was not presented may. be inferred from the plea in the case which was a plea of not guilty. This plea, under our statutes, puts in issue only the rightful ownership of the property and the wrongful taking and detention. Com. Laws of 1897, section 2748. Whether a special plea would be necessary to present such a question is not involved and we do not decide, but general principles of pleading would seem to indicate that it would.
Former recovery: bar when. The issues under the pleadings and facts in this case, are necessarily the same as those in the re-plevin case. • In order to recover at all they must show ownership, right to possession and unlawful caption by defendants. 1 Chitty on Plead., star page 168, et seq. These issues were all submitted to the court in the replevin case and determined against plaintiffs.
The issues in the two cases being the same, is the former judgment a bar to recovery in this case? Upon both principle and authority it seems the answer must be in the affirmative. Hatch, Exr. v. Coddington, 19 N. W. (Wis.) 393; Dawson v. Baum, 19 Pac. (Wash.) 46; Sayward v. Tawyer, 36 Pac. (Wash.) 966; Cromwell v. County of Sac, 94 U. S. 351; Railroad Co. v. U. S., 168 U. S. 1., 48.
It is argued, however, by plaintiffs that a different rule in cases like this has been laid down by the Supreme Court of the United States and Lammon v. Feusier, 111 U. S. 17, is cited. In that case the U. S. marshal for the district of Nevada and his bondsmen were sued upon his official bond for a wrongful levy of a writ of attachment upon plaintiff’s property. Plaintiff had instituted in the State Courts of Nevada an action of replevin for the same goods and had failed, Feusier v. Lammon, 6 Nev. 209, and, notwithstanding that fact, the circuit court for the district of Nevada and the Supreme Court of the United States sustained his right of action. But an examination of the case, as reported in 6 Nev. 209, shows it to be clearly distinguishable from the case at bar. In that case the trial court in its instructions to the jury limited the inquiry to the question whether the goods were held by the defendant as marshal, under a writ of attachment, and directed them in case they so found to find for the defendant. The Supreme Court held the instruction to be correct on the ground that the rightful owner of property wrongfully seized under process of a Federal court can not go into a state court to recover possession of the same. It will thus be seen that it affirmatively appears that case was not tried on its merits, and the question of ownership, right of possession in the plaintiff, the rightfulness or wrongfulness of the caption were not put in issue nor determined, the sole issue being as to whether the defendant had taken the goods as marshal under a valid writ. Not so in the case at bar.
Counsel has cited several cases showing that where there has been a tortious taking, the plaintiff may recover in trespass as damages any money necessarily paid to recover the same. But the principle underlying those cases has no application here. In all those cases it is made to appear that the taking was tortious, while in this case it is determined by the replevin judgment that the taking was not tortious.
It is, indeed, unfortunate if in this case the replevin judgment does not truly show the issue upon which it was rendered, and thus deprives plaintiffs of their rights. But this court is powerless to proceed upon any basis other than what is shown by the judgment itself, and that effectually bars any recovery in this case. We think the judgment below should have been for defendants, but the same being for one cent damages and costs, they do not complain of it.
For the reasons stated the judgment will be affirmed, and it is so ordered.
Mills, C. J., and McFie, J., concur. Leland and Crumpacker, JJ., did not sit.