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The defeated party in a replevin action, and his sureties on redelivery bond, are under an affirmative duty to take active measures to return all the property, whose recovery is adjudged, in as good condition as at the time action was commenced and free from material depreciation in its value. If the property has become deteriorated and worthless, the successful party is not required to accept it but may seek his remedy on the redelivery bond. But if property having a substantial value is available for delivery, the successful party should be required to accept it in partial satisfaction of his judgment. In such event the sureties are liable only for the difference in the value of the property when taken under the writ and the value at the time of its return.
Cullimore sued Brook for replevin claiming a special interest in items of personal property by virtue of chattel mortgage securing a note and sought possession of the personalty. Brook appealed from the lower court's judgment that ordered Brook to deliver the property sought in Cullimore’s suit for replevin, and to withdraw the deposit Brook made to the clerk's office as a redelivery bond. Brook argued that the cause should have been remanded with directions to take evidence of the value of the property sought by replevin, and to enter a money judgment for its value.
In a replevin action, may the defeated litigant in possession of property whose recovery is sought, elect to retain that property as his own, against the will of the successful party?
The court affirmed the lower court's judgment because Cullimore had the right to elect either return of the property or a money judgment. Brook, against whom judgment for possession was rendered, did not have the power to retain the property and pay its value as stated in the affidavit for replevin. The property was shown to be available for delivery and was of substantial value and far from being worthless or materially deteriorated. Cullimore was willing to accept the property. As the prevailing party, Cullimore had a right to insist on its return.