116 N.W. 95 | N.D. | 1908
The defendant, as sheriff, levied writs of attachment upon property claimed by the plaintiff as owner. The writs were levied in actions brought by the Bristol & Sweet Company and the Dowaigac Manufacturing Company against plaintiff’s husband on an indebtedness due from him to said parties. This action is brought to recover damages by reason of the taking of what is claimed to be her property. A jury was impaneled, and at the close of the testimony, the trial court directed a verdict for the plaintiff on all questions, except as to the value of the property taken by each of such creditors. The defendant has appealed from' the judgment entered in plaintiff’s favor on the verdict.
The facts developed at the trial are substantially the following: The plaintiff claims to be the owner of the attached property by virtue of a bill of sale from her husband. He had been engaged in the harness and saddlery business in Fargo for several years prior to making said bill of sale to the plaintiff. On about August 15 or 16, 1904, the husband disappeared from Fargo, and had not returned when the trial was had. Just immediately prior to his disappearance he executed a bill of sale of his stock of goods to the plaintiff, and said bill of sale was delivered to her on the morning of August 16th by one Pearson, who had been an employe in the store. Neither Aber nor Pearson was a witness at the trial. The plaintiff had no knowledge of the execution of the bill of sale un
The defendant claims that the judgment should be reversed upon the following grounds: (1) That no delivery of the bill of sale to this plaintiff by the grantor therein is shown. (2) That the notice prescribed by section 6951, Rev. Codes 1905, was not served. (3) That it was prejudicially erroneous to admit in evidence the indemnity bond given by the attachment creditors to the sheriff.
Upon the first question, it seems evident that Pearson knew that the bill of sale was in the safe before plaintiff came to the store. From the circumstances under which he took it from the safe, it is a fair inference that he went to the safe for the purpose of handing the envelope to her, and that the finding of it in the safe at that time was not accidental. Appellant also claims that there is no proof that the bill of sale was delivered to Pearson for the purpose of delivery to this plaintiff. We think the circumstances warrant the conclusion that Aber delivered the bill of sale to Pearson, to be by him delivered to her. The evidence is undisputed that Aber was indebted to his wife, and that he executed the bill of sale just before his disappearance. Pearson knew that he had disappeared, and deemed it necessary that she should come to the store. Pearson had been the only person employed by Aber during
It was claimed on the oral argument that the question whether there was a delivery of the bill of sale should have been submitted to the jury, and that it was error for the court to take that question from the jury.- Both parties .moved for a directed verdict, and both motions were before the court when the court granted plaintitff’s motion. Under prior adjudications of this court in parallel cases, both parties waived the right to have any question submitted to the jury after the making of such motions, and are conclusively deemed to have consented that all questions should be decided by the court. Appellant attacks these prior decisions as not based on any -sound principle of law or -procedure. In this case the ruling is not assigned as error, and the matter was in no way called to the attention of the trial court. For this reason we shall not review these prior decisions in this case.
It is further contended that the -plaintiff cannot in any event recover in this case, for the reason -of failure to comply with the provisions of section 6951, Rev. Codes 1905, which reads as follows: “If any property levied upon by the sheriff by virtue of a warrant of attachment is claimed by any other person than the defendant and such person, his agent or attorney, makes affidavit -of his title thereto- or right to the possession thereof, stating the value thereof and the ground of such title or right, the sheriff may release such levy, unless the plaintiff on demand indemnifies the sheriff against such claim by an undertaking executed by a sufficient surety; and no claim to such property by any other person than the defendant shall be valid against the sheriff, unless so made; and notwithstanding such -claim, when so made he may retain such property under levy a reasonable time to demand such indemnity.” The notice was not verified. It stated the basis of plaintiff’s title
Conceding, however, that the section is applicable in cases where the taking is tortious and from the possession of the owner who is. not a party named in the writ, still the direction of a verdict was. proper in this case. The sheriff made no objections to the defects in the notice, and acted upon the notice by demanding an indemnity undertaking from the attaching plaintiffs. He availed himself of the protection intended to be given hi-m by the enactment of the law, and can claim no injury by reason of the defects in the notice. The cases cited fully sustain the principle that even substantial defects in the notice are waived when the sheriff receives indemnity pursuant to the notice. This principle is not seriously combated by the appellant. His contention in reference thereto is that the waiver was not pleaded in the complaint, and cites Murray v. Thiessen, 114 Iowa, 657, 87 N. W. 672, as sustaining his contention. In Mitchell v. McLeod, supra, a contrary doctrine seems to be upheld in Iowa. Whether that is necessary in this state we do' not determine, as the appellant made no sufficient objection to the introduction in evidence of the indemnity bond or the notice based on or covering that ground. The objection that wa_s made was a general objection only. The objection, therefore, cannot be raised' for the first time in this court. There was no error in admitting the indemnity bond in evidence under the circumstances.
No other question of pleading is raised by either party in this-court, nor is the constitutionality of the statute raised. We do' not mention these questions which have been raised in some cases, as our decision in this case would not be affected, even if such contentions were sustained.
The judgment is affirmed.