McKinzie v. Baltimore & Ohio Rail Road

Brent, J., delivered the opinion of this Court: This is an action of replevin for a quantity of pig iron, commenced on the 15th of October, 1856, in the Circuit Court for Frederick county, by Louis McKinzie against the Baltimore and Ohio Rail Road Company. On the 17th of the same month, Chai’les Mantz and Michael Byrne, by an ¹⁷³ agreement of all the parties, were permitted to copie in and defend the suit, “ as fully and in the same manner, as if they were defendants named in the writ.” The usual declaration was filed; the pleas were non cepit and property in Mantz and Byrne, and in Mantz. On the first plea the plaintiff joined issue, and to the second replied property in himself, upon which, issue was then joined by the defendants. The case was afterwards, on the suggestion and affidavit of the plaintiff, removed to the Circuit Court for Howard county, and after an agreement by the parties to waive all errors and delecte in the pleadings, was tried at September Term, 1865.

The judgment being against the plaintiff he appealed to this Court. On the 8th day of October, 1856, prior to the bringing of this suit, the same plaintiff, McKinzie, had sued out a writ of replevin from the Circuit Court for Washington county, for the iron, now in controversy, against a certain Israel Russell. It was replevied and delivered by the sheriff to Wm. B. McClure, the agent of McKinzie.

A few days afterwards it was removed, and taken by Mantz into Frederick county. The ease in Washington county proceeded to trial, and after being brought to this Court, was finally determined in favor of McKinzie. The record in this case discloses the following facts : the identity of the iron, with that in the case of McKinzie vs. Russell, is fully established. Russell, the defendant in that case, was a mere agent of Mantz and Byrne, holding as such, the iron at the time it was replevied from him.

He had no interest in the suit, and claimed the iron, only as the property of his principals. Mantz and Byrne knew of the pendency of the suit. Mantz was present during the trial, furnished evidence necessary for the defence, and tending to shew property in himself and Byrne, — released the witness Brown, from whom it was claimed they derived their title, to render him competent,— and claimed in open (íourt that justice should be done him, as the iron was his. Their attorney, then employed in the present case, was also present, and assisted in conducting the ¹⁷⁴ defence.

Upon these facts, it is claimed by the appellant, that the judgment in the case of McKinzie vs. Russell, is conclusive, against Mantz and Byrne, of the title of McKinzie to the iron in controversy. The action of replevin in this state, as argued by the appellant’s counsel, is a more extensive remedy than in the English Courts, and it is here “appropriately applied to all cases in which the plaintiff seeks to try the title to personal property, and recover its possession.” Brooke vs. Berry, 1 Gill, 163 ; Bowie’s Ex’r vs. Bowie, 1 Md. Rep., 95 ; Cumberland Coal and Iron Co. vs. Tilghman, 13 Md. Rep., 83 . In McKinzie vs. Russell, the title was directly in issue. Bussell pleaded property in Mantz and Byrne, and McKinzie replied property in himself, upon which issue was joined.

The onus was thus upon McKinzie to prove to the satisfaction of the jury title in himself, as the issue was upon his replication. He was required to establish affirmatively, that the iron was’ his property; and by necessary consequence, his property by a title superior to the claim of Mantz and Byrne, relied upon in the defendant’s plea. The verdict and judgment show, that he did so successfully. A judgment, to operate as an estoppel, must be upon the same subject matter and between the same parties.

The term “parties,” however, is not