27 Minn. 81 | Minn. | 1880
The charge of the court in the trial below was certainly open to criticism; but if the jury found the only verdict which, upon the evidence, they could properly find, any errors in the charge were harmless. The case grows out of a race of diligence between creditors, to collect their claims against failing debtors. Long was sheriff of Waseca county. Stephenson was one of his deputies. An execution
As decided by this court in this case when here before, (25 Minn. 163,) the priority of levy upon plaintiffs’ execution gave them the prior right to satisfaction out of the property. To avoid this, the defendants allege, or attempt to allege, that the prior levy of plaintiffs’ execution ivas procured through fraud and false statements on the part of the attorney for plaintiffs. There is no evidence tending to show any effort or any statement by the attorney to prevent or delay the sheriff in executing the three executions placed in his hands, nor that the sheriff did, by reason of anything done or said by the attorney, delay for a moment the levy of those executions. All that can be claimed for the evidence is that it tends to show that plaintiffs’ attorney, by false statements made to the deputy, induced him to receive plaintiffs’ execution, and to levy it with greater promptness than he would otherwise have used.
There was evidence of a previous arrangement between the sheriff and deputy to the effect that the latter should not serve any process issuing from the district court; that all such process should be served by the sheriff in person. Defendants •claim that, had this arrangement been acted on, plaintiffs’
The evidence did not tend to prove a fraud, and the jury were bound to find as they did. That there were errors in the charge is immaterial.
Judgment affirmed.