Barney v. Scherling

40 Miss. 320 | Miss. | 1866

HaNDY, C. J.,

delivered the opinion of the court.

This was an attachment sued out by the plaintiff in error against the defendant, on a suggestion under oath, that the defendant was indebted to him in a specified sum of money, and that he “ had assigned or disposed of, or was about to assign and dispose of, his property or rights in action, or some part thereof, with intent to defraud his creditors, or to give an unfair preference to some of them, or that he had converted, or was about to convert, bis property into money or evidences of debt, with intent to place it beyond the reach of his creditors.” The defendant filed his plea in abatement, traversing the several averments of this affidavit; and upon that issue the verdict was for the defendant. The plantiffi thereupon moved for a new trial, on grounds stated which will be hereafter noticed; that motion was overruled, and thereupon the plaintiff took his bill of exceptions, and brings the case here.

The grounds for the motion for a new trial, are: 1, because the verdict was contrary to law and evidence ; 2, because the verdict assessing damages against the plaintiff was contrary to law and evidence; and 3, because the court allowed improper evidence to go to the jury — that the property levied on was the property of Anne G. Scherling and not of the defendant.

The first error assigned is the admission of the evidence offered by the defendant to show that the lands attached were the property of his wife.

On the trial, the defendant offered in evidence a deed for the lands attached, executed by one Cowden to Anne G. Scherling; the plaintiff objected to its introduction, and the objection was overruled. It does not appear by the record, nor is it now stated, on what ground that objection was based; and we can only regard the deed with reference to its relevancy and competency as evidence.

¥e consider it competent under the issue, and proper to be taken into view by the jury, upon the question . of the alleged intent of the defendant to dispose of his property, including the lands embraced in tiffs deed, in fraud of his creditors. It tended to show, in the first place, that the lands were the property of his wife; and hence that his effort to dispose of them, about the time the attachment was issued, was not for the purpose of disposing of his property to defraud his creditors. If the jury believed the conveyance to his wife to be hon&fide and'valid, and not made with intent to defraud his creditors, or to 'place the lands beyond their reach by having them conveyed to his wife, then it is clear that the evidence was directly relevant to the issue, whether he was about to dispose of his property with intent to defraud, bis creditors. But the evidence was likewise competent to be considered by them with reference to the validity of the deed, and it was for them to determine whether the conveyance to her was, or was not, made with a fraudulent intent towards his creditors. In the next place, the evidence was proper to be taken into consideration, as tending to show that the defendant was not attempting to dispose of his property in fraud of his creditors, because the lands were conveyed to his wife, and that was to some degree an impediment to their being subjected to the payment of his debts, and a reason why he should not convey them to defraud his creditors. In this view, the evidence was proper to be considered by the jury, who might give it such weight as they thought proper.

The second error assigned is that the court gave the first, third, fifth and sixth instructions asked by the defendant.

It is to be obsei'ved, that no objection was made on the trial to the granting of these instructions, nor was any exception taken on that ground. Nor was it alleged, as ground of the motion for a new trial, that these instructions, now alleged to be erroneous, were given. The case is brought here for review’ solely upon the ground that the court erred in overruling the motion for a new trial; and the question for our determination is, whether the corn't erred in disallowing that motion on cmy of the grotmds on which it was made. It is clearly not proper for us to take into consideration any other objections to the proceedings, trial and verdict than those which the plaintiff has stated in his motion.

This appears to be very clear on general principles, and there is nothing in our laws in conflict with it.

The statute (Rev. Code, 504, article 161) requires that all instructions given by the court in the trial of any cause, civil or criminal, shall be in writing, and that all instructions asked and given or refused, shall be marked by the clerk as given or refused, and shall be a part of the record, or appeal or writ of error, without a bill of exceptions. This simply makes the instructions given and refused, a part of the record, without a bill of exceptions, which before was necessary to that end.

Article 162 gives to any party aggrieved by any charge or decision of any Circuit Court, tlie right to tender a bill of exceptions, stating the matters of law wherein the court is supposed to err (and of course so much of the evidence touching the same as is necessary to present the questions of law), and the judge is bound to sign the same, and said bill of exceptions is made a part of the record.

This gives the right of a bill of exceptions to the rulings of the court, pending the trial, and before verdict, in order that the judgment, so far as it is affected by such rulings, may be reviewed on appeal or writ of error in this court; and this was the right, and the course of procedure prevailing under the law of England, in order to the correction of errors of inferior courts.

Article 166 of the same statute gives the further right, that “ when a motion for a new.trial shall be granted or refused, either party may except to the decision of the court, and may reduce to writing the reasons offered■ for said new trial, together with the substance of the evidence in the case, and also the decision of the court on said motion; and it shall be the duty of the judge to allow and sign the same; and such bill of exceptions shall be a part of the record in the cause. And it shah be lawful for the appellant or plaintiff in error, in such cause, to assign for error that the judge in the court below improperly granted or refused a new trial therein, and the High Court of Errors and Appeals shall have power to grant new trials, or to correct any errors of the Circuit Court in granting or refusing the same.”

It is manifest that these provisions of law were intended to apply to distinct states of case in which bills of exceptions were recognized or authorized ;■ that article 162' applies to bills of exceptions taken and signed, pending the trial, and before verdict ;. and that article 166 applies to exceptions taken to the action of the court on motions for new trials. It is equally clear that one or both of the remedies may be resorted to, in one and the same case, but that each must stand on its own merits.

The exceptions taken under the former, are confined to the special points to wbicb they relate, and can have no other or further application; and this is well settled in the English practice. But exceptions taken to the granting or refusal of motions for new trials were not allowed by the practice in England, for the decision of the court in such motions was not the subject of a writ of error, or appeal; and, moreover, by the motion for a new trial, the party waived his exceptions taken on the trial. Tidd’s Pr. 863. These rules, however, are changed by the necessary operation of the statutes referred to; for they both give the substantive right of bills of exceptions under the circumstances stated, and a case may be brought to this court by either or both of the modes of proceeding authorized. But each must stand on its own merits, and must be considered with reference to the special grounds and reasons on on which they may be taken, as stated in the bill of exceptions.

The statute, article 166, requires that a party making a motion for a new trial, shall reduce to writing the reasons offered for said new trial. The reason of this is, that the grounds on which the proceeding is founded, may be distinctly presented both to the court below, and for the consideration of this court. That is to constitute the case on which the party asks relief, and he must set forth the reasons on which he asks it, and of course must be confined to those reasons- when his case comes to be heard. And it is plain, that he cannot be permitted, on the hearing of that motion in the court below, and much less in this court, to rely on other errors apparent in the cause, than those which he has set forth as the ground of his motion. Eor that would be to present a different case for relief from that on which he had asked the aid of the court.

In this ease, the plaintiff, not having set forth the granting of the instructions now complained of as reasons for his motion for a new trial, cannot, on this writ of error, taken upon the overruling of his motion, object that those instructions were erroneously given.

The last error assigned is, that the court overruled the motion for a new trial.

The first ground taken in support of tbis assignment is, tbat tbe verdict was contrary to tbe evidence;

Tbe question presented to tbe jury was one of fraudulent intent on tbe part of tbe defendant. From tbe nature of tbe question, it is one peculiarly appropriate to be determined by tbe jury, and it would not be proper to disturb tbe verdict, unless it clearly appeared tbat it was against tbe evidence. Without a particular statement of tbe evidence, we deem it sufficient to say, tbat we do not consider tbe verdict so clearly contrary to tbe evidence as to justify us in setting it aside and granting a new trial.

Tbe second ground under tbis assignment is, tbat tbe jury found damages of $50 against tbe plaintiff for wrongfully suing out tbe attachment. Tbe statute expressly allows tbe finding of damages on such issues, if tbe jury find tbat tbe attachment was wrongfully sued out. Rev. Code, 3FT, article 14. It is not pretended tbat tbe damages were excessive.

Rut it is insisted tbat there* was at least probable cause for suing out tbe attachment, and therefore tbat tbe jury were not warranted in finding tbat tbe process was wrongfully sued out.

Tbe simple question was whether, under tbe evidence, tbe plaintiff was justifiable in suing out tbe writ; and if tbe jury were of tbe opinion tbat be was not, then tbe conclusion must be tbat it was sued out wrongfully. Tbe question was whether tbe process was rightfully or wrongfully sued out; and tbat has been settled by the verdict, unless it appear tbat tbe verdict is contrary to tbe evidence and should be set aside.

Let tbe judgment be affirmed.