44 Fla. 218 | Fla. | 1902
On December 4, 1894, plaintiff in -error, and A. Leffler & Son, a partnership composed -of A. M. Leffler and A. Leffler, purporting to act as trustees, filed their claim
On May 21, 1896, the cause came on for trial and the jury was sworn, among other things', to give plaintiff in attachment -such damages, not exceeding twenty per cent., as might appear reasonable and right in case it appeared to the jury that the claim was interposed for delay. Claimant objected to this provision in the oath, but the court overruled the objection and exception was taken to the ruling.
Claimant introduced in evidence an instrument purporting to be an assignment for the benefit of creditors, executed December 3, 1894, by Noah H. Green to the H.
Various errors are assigned relating to the oath to the jury, to rulings admitting, refusing to strike, and rejecting testimony, giving or refusing to give charges, permitting a witness to be recalled for cross-examination, refusing the motion for new trial, and to the form of 'the judgment entered, but in view of the conclusion we reach it will be necessary to refer specially to only a few of them.
I. As the jury failed to find any damages against the claimants, we fail to see how it could have been injured by the provision in the oath administered to them which claimant objected to. If this was an error, wMch is neither admitted nor denied, it was an immaterial one under the circumstances of this case.
II. The court excluded testimony offered by claimant tending to show that the ¡sheriff never made a valid .levy of the attachment writ upon the property embraced in the claim proceeding. This ruling is obviously correct. The claim proceeding must necessarily be based upon a levy upon personal property," and by instituting such a proceeding the claimant conclusively admits1 the regularity and validity of the levy upon or seizure of the property under the process. If the property has not in fact been
III. All other assignments of error, except that relating to the judgment entered upon the verdict, may be disposed of by saying that claimant was not, and could not have been, injured by reason of any error that could be found under them. In proceedings of this character the burden of proof is upon the claimant, who much recover upon the strength of his own title, and right to possession of the property. Price v. Sanchez, 8 Fla. 136; Jones v. Fox, 23 Fla. 454, 2 South. Rep. 700; Stansel v. Rountree, 40 Fla. 428, 25 South. Rep. 277. In Jones v. Fox, supra, text 459, it is said that at the trial of the claim the plaintiffs in the process' were put first to proof of their right to subject the goods levied on to their debt, that they assigned this for error saying correctly that in such a case, the claimant under the rule in this State must first be put to proof of his ownership of the property, and in other cases disposed of by this court without written opinion it has been held that the burden of proof is upon the claimant, and that he has the right to open and close. In this case claimant's source of title to the goods was an assignment for the benefit of creditors, which purported upon its face, and was shown by other evidence introduced by claimant, to include only a part of the assignor's property and to be, made for the benefit of a portion only of the assignor’s creditors, and which as against plaintiff in attachment a creditor of the assignor was absolutely void under the statute. Section 2307 Revised Statutes; Williams v. Crocker, 36 Fla. 61, 18 South. Rep. 52. It is true that subsequent to the
IV. The judgment entered declares that the right of property in certain described property was in N. H. Green, the defendant in attachment, a.t the time of the levy of such writ, and that such property was subject to such writ of attachment, and also adjudges -costs to the plaintiff in attachment. Complaint is made In one of
The judgment is reversed and the cause remanded with directions to the Circuit Court to enter a proper judgment upon the verdict.