25 Neb. 360 | Neb. | 1889
This was an action to recover the purchase price paid for a team of horses sold by plaintiff in error to defendant in error. It was alleged in the petition that plaintiff in error had no title at the time of the sale, the team being under mortgage to the Aultman <& Taylor Company, •a corporation organized under the laws of the state of Ohio, and that since the purchase by defendant in error the mortgagee had deprived him of possession, by taking the property and foreclosing the mortgage.
The answer filed by plaintiff in error admitted the sale ■of the property, substantially as alleged, but denied the extent of the consideration, and denied all the other allegations of the petition.
A trial was had to a jury, which resulted in a verdict in favor of defendant in error for the sum of $275, and upon which judgment was rendered. The 'cause is brought
The motion for a new trial and the petition in error contain a large number of assignments of error, but we shall notice only such as are presented by the plaintiff’s brief, following the order therein adopted.
There is no dispute but that the property was taken by the Aultman & Taylor Company, and sold as upon the foreclosure of a mortgage. The evidence shows that-,, about four months after the purchase of the property by defendant in error from plaintiff in error, defendant in error had the team in question hitched to his wagon and tied to a hitching post in the city of Kearney, and without his knowledge or consent an agent of the mortgagee unhitched the horses from the wagon and took them to a barn, where they were kept until they were sold upon the •street.
Upon the trial a witness by the name of Sharp was called by defendant in error, who was interrogated as to his knowledge of the team, and for the purpose of identifying them as being the team mortgaged. During his examination the following question was asked him:
Q,. (Handing.) “Examine that mortgage and ascertain the date of it, and state if you can identify it?”
To this question plaintiff in error objected, and -objected to the paper being used for any purpose by the witness,, unless it was introduced in evidence.
The witness stated that he had never seen the mortgage-before, and could not identify it. He was then asked if the ages of the horses described in the mortgage corresponded with the ages of the horses sold. The answer was, “ They would not be quite two years old when this mortgage was given. It would lack from November until spring. They were put in as yearlings, but were coming two years old.” To this plaintiff in error objected, and moved to strike out as incompetent, immaterial, and be
“ Q. (Handing Exhibit A again to witness.) Examine' the ages of the two horses described there, called colts in the mortgage, and state to the jury, on that examination,, how they compared in age and color with the mares you saw in the possession of Mr. Aitkin in June last?
" Defense objects as immaterial and irrelevant. Overruled. Defense excepts.”
The objection here presented seems to be to the introduction of a certified copy.of the mortgage instead of the original.
In this action of the court we can see no error.
Section 14 of chapter 32 of the Compiled Statutes provides, in substance, that to make a mortgage effective,, where possession is not taken by the mortgagee, it is necessary that the mortgage, or a true copy thereof, shall be filed in the office of the county clerk. It appears that the-original was so filed, and the instrument introduced in-evidence was a certified copy of such original. By the filing of the original, it became a part of the record in the county clerk’s office, and of course could not properly be removed.
Section 408 of the civil code provides that, " duly certified copies of all records and entries or papers belonging to any public office, or by authority of law filed to be kept therein, shall be evidence in all cases of equal credibility as would the original records or papers so filed.”
The offer made by the attorney for defendant in error
John W. Shahan, the county clerk of Buffalo county, was called as a witness, who testified that he was the custodian of the records and of chattel mortgages filed in the office of the county clerk, when he was asked the following question:
Q,. State if you find any chattel mortgage filed from Chace Masters and • B. F. 'Masters, to the Aultpian & Taylor Company ? If so, state the date of the filing.
A. Here is a chattel mortgage from Chace Masters and B. F. Masters to the Aultman & Taylor Company, dated November 21, 1883, and filed December 7, 1883.
“ The same is here marked exhibit B, and offered in evidence by the plaintiff. Defense object, as it does not purport to be a mortgage, but simply a copy and not a certified copy of anything. Nor does it purport to be an original, nor has there been any proof that any ever existed. Overruled. Defense excepts. A true and correct copy of said exhibit B is hereto attached.”
So far as we are able to see, exhibit B is a copy of exhibit A, hereinbefore referred to. And whether it is or not, is not deemed material. There seems to have been no proof offered that the mortgage exhibited was not executed by the persons whose names appear thereon, nor that it was not the original mortgage. The copy attached to the record as exhibit'B is a copy of the instrument introduced. We are, therefore, unable to say whether the mortgage produced by the clerk, and offered in evidence, was the original or not. Neither can we say whether it was duly certified or not.
A Mr. Clapp was called by defendant in error, who, over plaintiff's objection, testified that he took possession of the property by the direction of Savidge and Nevins, the agents of the Aultman & Taylor Company, and
The fact that the decision of the district court was accompanied by an oral statement of his reasons therefor could, in no sense, be prejudicial to plaintiff in error. If the decision of the district court was erroneous, the judgment could for that reason be reversed; but if the decision was correct, the fact that it was made in the presence and
Plaintiff in error offered in evidence a certified transcript from the records of the county court of Custer county, from which it appears that B. F. Masters was deceased; that administration had been granted upon his estate, and that certain promissory notes payable to the Aultman & Taylor Co., possibly the ones secured by the mortgage under which the property herein was taken, were filed against the estate, and that upon a final hearing by the county judge, no evidence having been introduced by the company, the court found, or rather was of the opinion, that) at the time the notes were given, the deceased “ was incapable of doing any business, for the reason that his-mental faculties had given way, from having had several strokes of paralysis.” The notes were, therefore, disallowed. Upon objection being made, this transcript was excluded, to which plaintiff in error excepted. It may be a question whether that proceeding could be treated as such an adjudication as to deprive the Aultman & Taylor Company of their right to foreclose the mortgage, in case
Finding no error in the record, the judgment of the-district court is affirmed.
Judgment aeexrmed.