Fletcher v. Cole

26 Vt. 170 | Vt. | 1852

The opinion of the court was delivered by

Red field, Ch. J.

1. We think the return of the attachment must be regarded, as sufficient to create a lien. The return of the service might not have been good upon a plea in abatement, but the judgment would be good until reversed in some way, and the return, with such reasonable intendments, as we are bound to make, in such cases, must be regarded as sufficient, we think. The removal was no doubt all, that would be necessary to constitute an attachment, or to malee the officer liable to the debtor for the property, after the creditor’s lien was gone. And whether the defendant had made a formal delivery of the same property to a subsequent purchaser intervening the attachment and the removal by the officer, could be of no possible importance to the validity of the attachment, if Myers’ title had vested, as such interference then by defendant was the mere intrusion of a wrong doer, and of no avail whatever, in regard to plaintiff’s title; and if Myers’ title was not made out, the plaintiff had no title whatever, and so the jury were told.

2. The omission to charge the jury, in regard to the right of Myers, in case nothing was said, in regard to his taking possession, would be technically error, if there was any possible reason to suppose any such state of facts could have been found by the jury; but as neither party claimed any such state of facts, the thing is highly .improbable, on the face of the case, upon any such presumption, although it is obvious such a finding by the jury is supposable, and it is somewhat to be regretted, that cases should be drawn up so defectively. But this is done in such haste, and so imperfectly often, that we are compelled sometimes to make very strong presumptions to save reversing cases upon points, which had no bearing whatever upon the case, as it actually appeared in the court below; and which would so appear, if the case were fully stated, and we no doubt reverse cases upon grounds, which do not exist in the case, but only in the bill of exceptions. We are reluctant to do this.

It is here obviously a mere oversight in drawing up the case, or if the omission actually occurred in the charge, it was forgetfulness, from the fact of its having no probable bearing upon the case. The obvious meaning of the charge is, that if you find the facts as the testimony on the part of the plaintiff tends to prove, no title vested in Myers; but if you believe the facts testified by Myers, that would be sufficient to give him a title. The idea, that the jury should have believed what Myers testifies, as to nothing being said as to payment, and disbelieve all his other ^stimony, is so improbable, that we are disposed to take the other view of the case, that the charge, under the state of the evidence was all that was important to a correct understanding of the law applicable to the facts.

3. We think the papers in the case show a release of Myers’ interest. It seems to be the very case of Moore v. Rich, 12 Vt. 563, in principle. The event of the suit could not affect Myers.

4. It does not seem important, whether the property was charged in execution, or not, as the judgment having been released, would of course destroy the lien, and the only ground of recovery now, is the plaintiff’s liability to the debtor, Myers. We see no reason to doubt this. There is no doubt the plaintiff sufficiently interfered with the property, and the assignment of this claim to the creditors, in discharge of their judgment cannot defeat the liarbility of plaintiff, and being liable over, he must recover the full ' amount.

5. If the plaintiff was a mere tort feasor, in- taking possession of the property, and Myers had released him, so that he was not liable over to any one, he could still recover of any one, who interfered with the property, by mere wrong. It is well settled that one tort feasor may always recover against a subsequent tort feasor, who shows no right whatever.

Judgment affirmed.

Note. — To warrant this court in reversing the judgment of .the county court, and sending a case to a new trial, there should be something more, than the mere possibility, that the jury have been misled. There should be a reasonable probability, at least. In a complication of written requests to be responded to in the hurry of a jury trial, all that could be expected of the judge would be, to charge upon the hypothesis of each party, and not to select broken views made up of fragments of testimony, on both sides, unless that view is presented in a separate and distinct request, which is not the case here.