Field v. Liverman

17 Mo. 218 | Mo. | 1852

RylaND, Judge,

delivered the opinion of the court.

From the above statement of the facts in this case, it will be seen, that the propriety of the ruling of the court below, in admitting and in refusing evidence, and in giving instructions and in refusing to give instructions, is before this court for consideration.

1. The defendant objected to the testimony of a witness in relating what one Julius Mitchell had said to witness about .Liverman and his business. The plaintiffs then proved, that Mitchell was the brother-in-law of Liverman; that Liverman had confessed a judgment to Mitchell for some nine hundred dollars; that execution issued on the same ; and, upon the plaintiffs stating to the court, that they expected to prove that the defendant’s property had been levied upon under this execution in favor of Mitchell, and held up under it, the court permitted the witness to testify in relation to what Mitchell said. There is no error in this. In cases where fraud is charged, a greater latitude is given to parties to interrogate witnesses and to bring before the jury facts and circumstances seemingly irrevelant, but which may ultimately form a link in the mesh that incloses the transaction and gives it' character. I should have had no objection to the admitting of tho testimony which the defendant offered showing the payment of debts ; yet for the refusing to permit this, this court will not reverse. As to the ruling of the court below, then, in admitting and refusing evidence, this court is not inclined to pronounce the same erroneous.

2. The instructions will next demand our consideration. The court, as will be seen from the above statement, gave for the plaintiffs four instructions. There ean be no serious objection to the 1st, 2d and 4th given for plaintiffs. The third instruction becomes the point on which the case turns. The defendant below, the plaintiffs in error, contends that this instruction is not the law, and that the court was not authorized to give it. The instruction brings before the jury the conduct of Mitchell and the defendant in regard to the confession of the judgment, issuing of execution, and the direction to the sheriff, not to levy it until he got further orders ; this, too, after the defendant had been informed by the sheriff of his having the execution against him in his hands, and after defendant talks with Mitchell privately about the business; then Mitchell, in the presence of defendant, gives orders to the sheriff not to proceed until he should direct him. The law upon this subject has been decided to be, that, where a plaintiff shall direct the sheriff to hold up his execution, not to sell nor proceed to make the money until ho shall give further orders, and until he shall find younger executions crowding .in, such acts render the execution dormant and fraudulent as to subsequent executions. The instruction marked as third, given for the plaintiffs, coupled with the instruction given by the court of its own motion, on the same subject, in the opinion of this court was legal and proper. It placed the transaction fairly before the jury, and declared the law as favorably for the defendant as was consistent with propriety. See 17 Johns. Rep. 273. 5 Cowen, 393.

There was no error, then, in the court below, and its judgment must be affirmed. The other Judges concurring herein, the same is affirmed.