Brownell v. McCormick

| Mont. | Jul 15, 1887

Galbraith, J.

The transcript in this case is not prepared in accordance with the requirements of the rule. See Rules Sup. Ct., No. 4. We would, therefore, be warranted in refusing to consider it. The errors of law are, however, so apparent that the consideration of doing substantial justice prevails upon us to overlook this defect in this case. But as we have had occasion to call attention to the disregard of this rule upon a former occasion, we may never again be so indulgent. Alder Gulch Con. Min. Co. v. Hayes, 6 Mont. 31" court="Mont." date_filed="1886-01-15" href="https://app.midpage.ai/document/alder-gulch-con-mining-co-v-hayes-6637599?utm_source=webapp" opinion_id="6637599">6 Mont. 31.

This is an appeal from an order overruling a motion to set aside the verdict and judgment. The action was one of claim and delivery, brought to recover the possession of certain horses, or their value. It appears from the record that the defendant, as the acting constable of Diamond township, Meagher County, seized the above property, by virtue of certain writs of attachment, issued out of the justice’s court of said township, in several separate actions against the firm of Dalton & Radbourn, as the property of Dalton & Radbourn.

The firm of Dalton & Radbourn had leased of one Cheney Moulton certain ranches and horses in the county of Meagher, and among the animals so owned by Moulton, and leased to them, were the two mares mentioned in plaintiff’s complaint. On February 5, 1885, Mr. Moulton sold his Montana ranches and stock to the plaintiff in this case, and executed a bill of sale therefor, and thereafter that firm continued to hold the same under their lease, but as tenants of plaintiff. The three stallions mentioned in the complaint were purchased by the plaintiff, April 25, 1886, at Bloomington, Illinois, of one George W. Stubblefield, and were shipped out to Montana immediately, and placed in possession of Messrs. Dalton & Radbourn, on plaintiff’s ranch, with authority to sell them for plaintiff if they had an opportunity to do so. All of the property remained in the possession of Dalton & Radbourn, as lessees of plaintiff, up to about the first day of August, 1886; at which time the plaintiff, having previously given the notice mentioned in the lease, terminated the same, and took possession himself of all his property. On the seventh day of August following, the defendant, as constable, seized the horses mentioned in the complaint, under his writs of attachment against Dalton & Radbourn, and took them out of the possession of the plaintiff. The defendant, in justification, pleads his writs of attachment and executions subsequently issued in the cases, and levied upon the property in question. He also pleads specially that there was no delivery of the property under any sale made to the plaintiff; that plaintiff's claim to the property was founded on a transfer fraudulently made to hinder, delay, and defraud the creditors of Dalton & Badbourn. The defendant also pleads, by way of estoppel, that plaintiff knowingly permitted Dalton & Badbourn to hold, possess, and use said property as their own, and that the credit obtained by them was extended in good faith, upon the belief, upon the part of their creditors, that it was their property, and that the attaching creditors would not Pave extended said credit but for the asserted ownership of said property by Dalton & Badbourn, with the knowledge and consent of plaintiff. Plaintiff replied, taking issue on all new matter set up in the answer. The cause was tried to a jury, and a verdict having been found in favor of defendant, judgment was entered in his favor, and against the plaintiff, for costs. Only one of the parties filed a brief in this case, who was the appellant.

Upon an examination of the record, it is evident that this verdict is not supported by the evidence, but rather that it is against the evidence. But no specification of this character is made, and therefore we canfiot reverse the judgment upon this ground. But there are errors specified which will enable us to do substantial justice. The court admitted, as evidence to the jury on the part of the respondent, that Dalton & Badbourn had exhibited to certain persons a certificate of sale and pedigree of Premier, one of the horses, and also declarations of ownership of the horses made by them, and that they had exercised the same acts of ownership over them as if they had been their own. Upon the conclusion of the testimony, the appellant moved to strike out this portion thereof, which was refused. This refusal is specified as one of the errors. There was no testimony that Dalton & Badbourne did in fact own the stock attached. Upon the question of ownership, the appellant had presented by his testimony a strong prima facie case. There was.no evidence that the attaching creditors gave credit for the claims upon which they had brought their suits to' the firm of Dalton & Radbourn, nor that Dalton & Radbourn claimed to be the owners of the attached property, nor that appellant had any knowledge of such claim, or authorized them to make such claim. They never held themselves out as the owners of the property, or were authorized by the appellant so to do. The refusal to strike out this testimony was an error which was prejudicial to the appellant, as the testimony may have misled the jury.

Errors are also alleged to the refusal of the court to give certain instructions requested by the appellant, and to the giving of certain instructions asked by the respondent. The consideration of two of these will be sufficient. The court gave the following, requested by the the respondent: “ If this property has been covered up, or any part of it has been covered up, to hinder, delay, or defraud the creditors of Dalton & Radbourn, you will find for the defendant as to the property so covered up.” There was no evidence showing, or tending to show, that any of the property in question was “ covered up,” or concealed with intent to hinder, delay, or defraud the creditors of Dalton & Radbourn. This instruction was not, therefore, applicable to or warranted by the evidence, and was manifestly misleading to the jury, and prejudicial to the appellant.

Instruction No. 4 was as follows: {5If Dalton & Radbourn had an undivided interest in the property in question at the time of the levy, you will find for the defendant.” There was no evidence indicating that Dalton & Radbourn had any interest in the property attached. It was not, therefore, based upon any evidence in the ease, and misleading to the jury. It is also not the law. The officer can only seize on the attachment or sell on the execution such interest in property as the debtor has therein. Also, where property which is sought to be attached, belonging wholly to the debtor, is in the lawful possession of another, proceedings must be had by serving upon such other person a copy of the writ, and the notice required in section 186, division 1, Revised Statutes of 1879; in other words, by garnishment. But where the officer, under attachment, seizes an undivided interest in property, of a stranger, he is pro tanto a trespasser.

In presenting this case to this court, there has been conduct which we must severely condemn. The brief of the appellant contains language attempting to cast reproach upon the proceedings of the court below, and seeking to make it the object of contemptuous wit and ridicule. Argument is the principal purpose of the brief, and this kind of wit and ridicule is not argument. The use of slang phrases and ridiculous language, especially when directed to the proceedings of the court, should have no place in a brief. No character of persons can have a deeper interest in preserving the dignity of the bench, or maintaining the courtesies of our honorable profession, than the members of the bar, and they should act accordingly. This is one of the avowed purposes for which bar associations are formed, and one of the objects to which their efforts are directed. The language of the brief in this case is reprehensible, as being in violation of the conduct and courtesy due from the bar to the bench, and will not be tolerated.

For the foregoing reasons the judgment should be reversed.

The judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.

McConnell, C. J., McLeary, J., and Bach, J., concur.