1 S.D. 434 | S.D. | 1891
This was an action of claim and delivery brought by plaintiff against the defendant to recover the possession of certain personal property alleged to have been wrongfully taken from the plaintiff by defendant on September 23, 1887. The action was commenced on the 2d day of November, 1887. The plaintiff alleges in his complaint that he -was the owner and in the actual possession of said personal property; that the same was wrongfully taken from him by the defendant, and that the value of it was $3,500. The defendant alleges that he was sheriff of McCook county, where such personal property was at the time of the taking, and that as such sheriff he took the property from the plaintiff by virtue of several writs of attachment issued against the property of M. T. Jaqueth, and alleges that the property in the suit was owned by said M. T. Jaqueth, and not by the plaintiff. The cause was tried December 12, 1888, before a jury; verdict returned for plaintiff; judgment entered; motion for new trial overruled May 10, 1890; appeal taken and perfected from the order denying a new trial and from the judgment. The motion for a new trial contains all the alleged substantial errors of which the appellant complains, and they are as follows: (1) Abuse of discretion of the court in denying defendant’s motion for a continuance. (2) Misconduct of the jury. (3) Newly discovered evidence, material to the defendant, which could not, with reasonable diligence, have been discovered before the trial. (4) Insufficiency of the evidence to justify the verdict, and that the verdict was against the law, and not responsive to the issues. (5) Errors of law occurring at the trial, and excepted to by the defendant.
As to the denial of a continuance upon the application of defendant. The motion was based upon the affidavit of M. A. .Butterfield, one of defendant's attorneys, subscribed and sworn to December 13, 1888. It will be seen from an examination of
As to misconduct of the jury. Affidavits of jurors will not be received to impeach their verdicts. This is the general rule, unless changed by statute authorizing such attack upon the verdict by those rendering it. The only statutory ground upon which the affidavit of jurors is permitted to be heard is, whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. Subdivision 2, § 5088, Comp. Laws. This question was fully considered at this term, in -the case of Murphy v. Murphy, ante, 142, and we have no reason to change our opinion ’upon it. The rule enunciated in that case will be adhered to in this. The affidavits of the jurors do not state facts coming within the statutory exception, and the ruling of the court on this point was correct.
Is the appellant entitled to a new trial on the ground of surprise, and of newly discovered evidence? A former verdict, or other decision, may. be vacated and a new trial granted on application of the party aggrieved on the ground of newly discovered evidence, material to the party making the application, which' he could not with reasonable diligence have discovered and produced at the trial, and on the ground of accident or surprise which ordinary prudence could not have guarded against. Subdivisions 3, 4, § 5088, Comp. Laws. The application in each case must be made upon affidavits. An application to open a case on the ground that the party has been surprised, or has discovered new evidence, is usually addressed to the discretion of the court; and convenience as well as analogy would seem to require that it should be determined exclusively by the court of original jurisdiction. It is very much of the same character as a default or other laches suffered by mistake, or surprise, which may be relieved against in proper cases by the court in which the action is pending; and, unless
The newly discovered evidence relied upon as ground of new trial in the case at bar is stated in the affidavits of M. A. Butterfield, attorney for defendant, and Mathew White, the defendant. The only material facts stated in these affidavits are that the defendant did not know that plaintiff had never been assessed for personal taxes in either Minneapolis or Cedar Falls, and did not know that such was the fact till after the trial of the case, and did not know that the mortgage of $4,500 to A. F. Oakes, on one stock of goods belonging to said M. T. Jaqueth, was made and executed by said Jaqueth on the same day and at the same place as the pretended bill of sale from said Jaqueth to plaintiff, Gaines, for tne goods in controversy, and that said plaintiff, Gaines, was present at the time, and
The affidavit of defendant in relation to the withdrawal of the attorney from the case was somewhat contradicted by an affidavit of H. H. Keith, Esq., the attorney for the plaintiff, in which he says “that it was known by said M. A. Butterfield some time before the case was called for trial that Winsor & Kittredge would not participate in, the same, and when the case was reached for trial the said M. A. Butterfield and C. S. Palmer appeared in the case.” A large number of other affidavits were introduced by the plaintiff controverting the alleged facts set up in the defendant’s affidavits of newly discovered evidence, and corroborating the testimony of plaintiff, Gaines, given on the trial of the action. The affidavits show no effort made to procure this testimony, and no diligence is shown to obtain it.
Again, the testimony is immaterial, and could have very slight, if any, weight, in determining or changing the result. What bearing could the fact that the plaintiff had never been assessed for personal property, either in Minneapolis or Cedar Falls, have upon this case? His personal property, according
The action was commenced on the 2d day of November, 1887, and not tried until the 14th day of December, 1888. Over thirteen months had elapsed in which defendant had opportunity to prepare for the trial of the cause. The affidavit of the defendant’s attorney shows that he was conversant with these facts prior ti the trial; but if he were not, the whole history of the plaintiff, from the time he became a married man, and up to the time of purchasing the goods in controversy, could have been easily ascertained. The defendant, through his attorney, must have known what was necessary for him to establish at the trial in order to hold the property. He knew he had to show that the sale to, and the possession by the plaintiff of, the goods must be overturned, by showing fraud, or that the transaction was of such a nature as would clearly show upon the trial that it was made to defraud and delay creditors. He knew where plaintiff had been residing for several years before making the purchase, and what his business had been, and if the facts set forth in his affidavit were material to the defense, he could, within a short time, have found them out before
Upon the question of the insufficiency of the evidence to justify the verdict for the plaintiff, we must say that it is not properly before the court, and therefore cannot be considered, because there is no specification of particulars in which the evidence is insufficient. Section 5081, Comp. Laws, is as follows: “No particular form of exception is required, but when the exception is taken to the verdict or decision upon the ground of the insufficiency of the evidence to justify it, the objection must specify the particulars in which such evidence is alleged to be insufficient, but the specification of such particulars, as provided in section 5090, shall be sufficient.” The specifica
At the close of the testimony the defendant asked the court to direct a verdict in his favor, upon two grounds: (1) That the plaintiff was not the owner of the stock of goods in controversy at the time of the commencement of the action; (2) that there was no change of possession of the property as is contemplated by law so as to take it out of that class of cases which says that it is a fraud in law. The whole foundation or the gist of the answer of the defendant, is upon the allegations of fraud. The validity of the sale to plaintiff by M. T. Jaqueth was attacked upon that ground, and that it was fraudulently made, and for the purpose of hindering and delaying creditors from collecting their debts. When a party is charged with fraud, the presumption of law is that he is innocent until it has been showm that he is guilty. Under our statute, the question of fraudulent intent is one of fact, and not of law. Section 4659, Comp. Laws, is as follows: “In all cases arising under the provisions of this title,’’ (Fraudulent Instruments and Fraudulent Transfers,) “the question of fraudulent intent is one of fact, and not of law; nor can any transfer or change be adjudged fraudulent solely on the ground that it was not made for a valuable consideration. The record discloses the fact that the whole transaction was passed upon by the jury under instruction from the court. The jury, who are the sole judges of the credibility of witnesses, and of the facts proven, determined that
The sale of the goods is attacked on the ground that it was made to hinder, delay, or defraud the creditors of the vendor. The testimony tends to show that plaintiff paid a valuable consideration, and took immediate possession. It then de volved upon the defendant to show that plaintiff was not a bona fide purchaser. In other words, to defeat the sale, defendant must show that it was made by the vendor to hinder, delay, or defraud his creditors, and that the vendee in some way participated in the intended fraud. The criterion by which the test must be'made, is whether the purpose of the grantee was to aid the grantor in perpetrating a fraud upon his creditors. Did he buy recklessly, or with guilty knowledge, or with such knowledge as would put a prudent man upon inquiry? The actual secret intent of the grantor, however bad, cannot effect a bona fide purchaser without notice. This fact was passed upon by the jury, and there is testimony to support the verdict. It discloses the fact that plaintiff was thirty-seven years old; had been at work for himself since he was twenty-one years old; that he was a hard-working man, economical and saving of his money; that his family was small, and his wife careful, prudent and cautious in the expenditure of money; and that they had both, no matter what their resources, always lived greatly within their means, and had saved from their income something each year. These facts appearing before the jury, it could well find that plaintiff may have had means with which to purchase these goods. Neither is there anything so conclusively suspicious
The plaintiff had previously loaned to the vendor over $1,500, and had taken his note. He was out of business, and found on going to the place where the goods were situated that he could purchase the goods and have the amount of the note applied on the purchase. An inventory of the goods was taken, the amount of the inventory was paid, a bill of sale executed, money paid, and he at once went into possession, rented the building in which the goods were kept, it was delivered to him, he moved his family into it, opened a set of books, employed a clerk, and advertised his business in the journals of - the town, and immediately went to selling goods and purchasing other merchandise to replenish stock. The management was entirely changed, and the grantor exercised no control over the goods. The statutory requirements of actual change of possession were complied with. The sale was complete, the delivery immediate, the change of possession actual and continuous.
The objection made to the charge of the court by the defendant cannot be considered, as no exceptions were taken to it at the time it was given to the jury.
The further contention of defendant is that the verdict is not responsive to all the issues; that it did not settle the question of title to the property; that it only determined that the plaintiff had the right of possession; and that the jury did not pass upon the question of damages for the detention of the property. This contention is not supported by the verdict, which is as follows: “We, the jury, in the above entitled cause find all the issues in said action in favor of the plaintiff, and against the defendant, and that the plaintiff is entitled to recover the possession of the personal property mentioned and described in the complaint in the action, and taken by the coroner herein or in case a delivery thereof cannot be had then that he recover the value of said property and we find the value of said property to be $3,500.” When a complaint alleges ownership and right of possession in the plaintiff and wrongful detention by the defendant, £(, general verdict for the plaintiff