Blakeslee v. Rossman

44 Wis. 550 | Wis. | 1878

Cole, J.

I. Several of the questions raised upon this record were decided adversely to the plaintiffs in Blakeslee v. Rossman, 43 Wis., 116, and are therefore abandoned by their counsel on this appeal. But the same counsel object that the verdict in this case is incomplete, and fata^y defective, and for that reason the judgment should be reversed. The jury found for the defendant on all the issues, and assessed his damages at the sum of ten cents; and further found that the defendant is, and was at the commencement of the action, the owner and entitled to the possession of the property, goods and chattels mentioned in the complaint; and that the value of such property was $693.54. Now it is said that this finding was against all tbe evidence, and contrary to tbe claim of tbe defendant. Tbe defendant, in bis answer, after denying tbe allegations of the complaint, justified tbe taking of tbe property, as sheriff, under a writ of attachment issued in favor of one Allen and against one Farnham;'and alleged that Farnham was indebted to Allen in tbe sum of $1,974, over and above all legal set-offs; that tbe property was tbe property of Farnham when seized on tbe attachment; and that the chattel mortgage given by Farnham to tbe plaintiffs, and under .which tbe plaintiffs claimed tbe property, was fraudulent, and intended to binder and delay tbe creditors of Farnham. The verdict of tbe jury must be construed with reference to these averments in tbe answer. When so considered, it was equivalent to a finding that tbe general property was in Farnham, subject to tbe special property of tbe defendant. This was a sufficient finding as to the general ownership. Blakeslee v. Rossman, decided with this case.

It is further said that the jury did not find tbe value of the defendant’s interest. Tbe attachment was for $1,974, which it was alleged Farnham justly owed Allen. The value of the goods was conceded to be only $693.54. Of course, the defendant, if he recovered at all, would necessarily recover the full value of the property.

II. The second error relates to the admission in evidence of the deposition of G-eorge 0. Farnham. The deposition was taken before a notary public in Minnesota, under the provisions of chapter 68, Laws of 1872. The objection to the deposition is, that the notarf failed to set out in his certificate, w, extenso, the oath which was administered to the witness. It is claimed that the law requires this to be done. The statute relating to this matter prescribes that the person whose deposition is taken, “ shall be first duly sworn or affirmed to testify to the whole truth and nothing but the truth; ”• and that the officer shall accompany the deposition with “his certificate, showing the time and place of taking the same, who was present at the taking thereof, and who examined and cross-examined tbe witness, the oath that was administered to the witness,” etc. The notary did annex to the deposition his certificate, stating, among other things, “ that, previous to the commencement of the examination of the said George O. Earnham as a witness in the said action, he was duly sworn by me as such notary, to testify the truth, the whole truth, and nothing but the truth, relative to the said cause.” We think this certificate contains all that was essential relative to the oath. Besides, it appears from the certificate that both parties appeared by counsel before the notary, and took part in the examination of the witness. Under these circumstances, we think there was no error in admitting the deposition in evidence.

By the Court. — The judgment of the circuit court is affirmed.

RyaN, 0. J., took no part.