51 Minn. 460 | Minn. | 1892
This appeal illustrates how a simple case can be complicated by careless practice. The action was one in replevin
Defendant Sundby interposed a separate answer, denying all the .allegations of the complaint, except as to the value of the property, and asking for judgment for costs. Dickson and Luunow for their .answer interposed a general denial of all the allegations of the complaint, and also asked for judgment for costs. Nelson & Hover interposed an answer, denying the allegations of the complaint, and alleging that they had purchased and obtained possession of a part •of the property, to wit, the span of horses already referred to, and a set of hack harness, from one Nord,-and had retained possession thereof until taken from them by virtue of the writ in this action. Plaintiff replied, admitting the allegations of Nelson & Hover’s answer as to their purchase from Nord, but denying that Nord had any title to the property. On this state of the pleadings the cause came to trial, and resulted in a general verdict “for the defendants.”
The point is made that Nelson & Hover did not appear at the trial, and hence that the verdict must be construed as being in favor only of the other defendants. But the statement of the record is that •certain counsel appeared on the trial “for the defendants.” This must be construed as meaning all of the defendants, and consequently the verdict must also be held to be one in favor of all the defendants, .at least all who had answered.
It appears that plaintiff made a motion for a new trial, and that from an order denying the motion he appealed to this court, but subsequently abandoned his appeal, which was dismissed. After-wards, on motion of his counsel, a judgment in favor of Sundby was rendered for his costs. Subsequently, on motion of Nelson & Hover, the court ordered judgment in their favor for the return of the span of horses and set of harness described in their answer, and alleged to have been taken from their possession on the writ in the action.
The abandonment and dismissal of plaintiff’s appeal from the order denying his motion for a new trial does not prevent him from raising any questions on appeal from the judgment which he could have raised had the first appeal never been taken. Had the order been affirmed either after argument on the merits or under the rules of court, all questions that might have been raised on that appeal would be res adjudicata, and would not be considered on a subsequent appeal from the judgment entered on the verdict. Schleuder v. Corey, 30 Minn. 501, (16 N. W. Rep. 401.) But a 'dismissal of the appeal would not have any such effect.
Plaintiff makes the point that only one judgment settling the rights of all the parties to the suit could be entered on the verdict, and therefore, as one judgment had already been entered in favor of Sundby, a second judgment could not be entered on the same verdict in favor of Nelson & Hover.
The correct practice would have been to have had the judgment already entered set aside or amended, and a judgment entered adjudging the rights of all parties in accordance with the verdict. But the order for judgment was not opposed on any such ground, and the point now made was not suggested to the court below.
It is but an irregularity which does not appear to prejudice the plaintiff, and, as the defendants Nelson and Hover have judgment for only what they are entitled to, (assuming that the verdict would support a judgment in any form for such relief,) we do not think tké point can now be taken advantage of by plaintiff.
A general verdict for the defendants in a replevin suit is, as against the plaintiff, a finding on all the issues • and, as it stood admitted by the pleadings that this span of horses and set of harness were taken from the possession of Nelson & Hover on the writ, the verdict entitled them to judgment for its return. In the light of the issues made, by the answer and reply, the general verdict was suffi
The further point is made that the judgment is unauthorized, at least in so far as it is for the return of the set of harness, which never came into the possession of plaintiff, but was delivered by the officer to the defendant Dickson, as appears from the return to the writ. But the pleadings, as we construe them, admit that the officer took this property from the possession of these respondents, and, as the plaintiff started the process of the court in motion, he is responsible for the acts of the officer in executing it, and it is no excuse to say that the officer, after taking the property from the possession of Nelson & Hover, improperly surrendered it to' some one else. Whatever complications have arisen in this regard seem to have grown out of the plaintiff’s own irregular course in bringing one action against a number of defendants to recover several articles of property, some of which were in the possession of certain of the defendants, and some in the possession of other defendants.
We find nothing in the alleged errors occurring during the trial' worthy of special notice. The cross-examination of W. H. Adam-son, a witness for plaintiff, was permitted to go beyond the limits of strict cross-examination, but his relations to the plaintiff and to the-transaction out of which this litigation arose were such as to indicate very clearly that, had defendants been compelled to put him on the stand as their own witness, the court could very properly have-allowed them to put leading questions to him or to cross-examine-him as a hostile witness.
It appeared on the trial that plaintiff claimed the property under a chattel mortgage executed by Sundby. It seems to have beem taken for granted all through the trial that, at the time this mortgage was given, Sundby was the owner of the property, and that” the-other defendants claimed title under him by sales or transfers subsequent to this mortgage, and that the determination of the case as-
Judgment affirmed.
(Opinion published 53 N. W. Rep. 761.)