Herman v. Jeffries

4 Mont. 513 | Mont. | 1883

Wade, C. J.

In this action the plaintiff, who is a married woman, seeks to recover from the defendant, the sheriff of Lewis and Clarke county, the value of certain horses, claimed by her as her sole and separate property, which were seized on execution and sold to satisfy a judgment against her husband.

1. To maintain her right and title to the property in question, the plaintiff, among other things, offered, and the court received, in evidence her declaration as a sole trader, and thereupon the defendant filed a bill of exceptions, which, after setting out the declaration, acknowledgment thereof and indorsements thereon, showing that the same had been duly recoi’ded, proceeds as follows: “ To the introduction of which (said declaration) defendant objected, which objection was by the court overruled, to which ruling defendant then and there duly excepted, and this, his bill of exceptions, is signed accordingly.”

This objection is fatally defective, for that it does not point out in what respect the declaration is claimed to have been objectionable. The statute provides, sec. 281, that “the point of the exception shall be particularly stated,” and we have so frequently held that an exception of the character of this one raises no question that we can consider, that it is not necessary to enlarge upon the subject here.

2. The attempt to save exceptions to the instructions of the court to the jury was by virtue of the following stipulation, which by its language seems ^to have been entered into by the counsel of the respective parties after the case had been submitted to the jury and they had retired:

“stipulation as to exceptions.

“It is hereby stipulated and agreed that each instruction given by the court for the plaintiff shall be deemed excepted to by the defendant; and that each exception offered by the defendant which was refused by the court shall be deemed excepted to by the defendant; and that each instruction which was offered by the defendant and modified by the court shall be deemed excepted to by the defendant; and all instructions offered and given for the defendant, and all offered for plaintiff and refused, and all offered by plaintiff and modified, are hereby deemed excepted to.”

There was no bill of exceptions as to the instructions; no pointing out of objections to the same; and for all that appears, this stipulation may have been entered into without bringing to the court knowledge of a single objection to the instructions, and after the rendition of the verdict by the jury. The effect of a bill of exceptions is to point out the error complained of, which must be signed by the judge or written down by the clerk. Statutes, sec. 281. An agreement between counsel that certain matters shall be deemed excepted to, without complying with the statute as to saving exceptions, is of no consequence whatever. As to exceptions to instruction to the jury, the statute (sec. 253) provides: “If any party to the trial desires to except to any instruction given by the court, or to the refusal of the court to give, an instruction asked for, or any modification thereof, he shall reduce such exceptions to writing, and file the same with the clerk, before the cause is submitted to the jury.”

The stipulation aforesaid is in no sense a compliance with the statute.

This court, at the January term, 1882, in the case of McKinstry v. Clark & Cameron, 4 Mont. 370, affirming Griswold v. Boley, 1 Mont. 549, and McKinney v. Powers, 2 Mont. 466, held as follows: “The law requires the judge to indicate by numbering and marking the instructions offered to him, so that it shall distinctly appear what he gives, refuses or modifies. It also requires the parties to a suit, desiring to except to this action of the court, to specify the same in writing as to each instruction, and the objection to the same, so that the court may know whether the objection exists to the modification, or the giving, or the refusal of the court to give, the instruction. A general objection to all and to each of the instructions, that they are not law, or are misleading to the jury, is not enough. This is the doctrine of the cases cited, and is affirmed in this case.”

' 3. The plaintiff, to further maintain her action, offered in evidence a list of her separate property, filed and recorded in the county of Lewis and Clarke, where the property was, and where the same, subsequent to such filing and recording, was seized by the defendant. The defendant objected to this evidence, for the reason that it was not shown that the plaintiff was a resident of the county in which the list was recorded, at the date of such record. The objection was overruled, and the defendant duly excepted.

It appears from the bill of exceptions that it was in evidence that the plaintiff with her family, at the time of the filing of the list, was camped in Lewis and Clarke county, and had the property in such county, and had removed to said county from Missoula, and had no residence outside of the county of Lewis and Clarke at the time of filing said list. It further appears from the evidence, which is properly before us, this being an appeal from an order overruling a motion for a new trial, that at the time the list was filed the plaintiff was at Hot Springs, Lewis and Clarke county; that she had no other place of residence than Lewis and Clarke county, and that Lewis and Clarke county was her point of destination when leaving Missoula.

Being in Lewis and Clarke county with her family, that county being her destination when she left her former residence in Missoula, and having no residence outside of that county, her separate property list was properly filed in the county of Lewis and Clarke, where the property was, and where she resided, having no other place of residence.

There is no testimony tending to show that Choteau county was her objective point when leaving Missoula county. But if there was, and she had been en route to Choteau county when she stopped in Lewis and Clarke county with her property, still she might protect her separate property from the debts of her husband by causing a list thereof to be recorded in Lewis and Clarke county, or any other county through which she passed on the way to her future residence. She had left. her residence in Missoula county and had not gained a residence in Choteau county.. Her residence in Missoula county, and her declaration as sole trader and separate property list in that county, would protect her property until she had gained a residence in some other county, and while her property was so en route to such other county. Perhaps she was in search of a residence, taking her property with her. In such a case it was proper for her to file a list of her separate property with the recorder of every county that she entered, and apparently such a course was not only proper, but necessary. A married woman is not prohibited from changing her residence from one county to another, and she may protect her separate property wherever she goes. The purpose in requiring a separate fist to be recorded is notice, and this purpose is accomplished though the residence be for a longer or shorter period.

The defendant ought not to complain that the plaintiff gave too much notice of her rights. He would not have been injured if she had filed her separate property list in every county in the territory, and that would have been ■a proper precaution, if she had abandoned her residence, and was driving her horses from county to county, seeking another residence. Any other construction of the statute would deprive a married woman of its benefits, unless she remained a permanent resident of the county in which her separate list was first filed, and would ex.pose her property to seizure for her husband’s debts, if she undertook in good faith to change her residence.

If good faith characterizes the transaction, and the ownership of the wife is in no manner tainted with fraud, she may protect her property within the territory by complying with the statute, no matter for how short a period she may have resided in the county where the list is filed, providing she has no residence elsewhere.

If a married woman, a sole trader, in the business of raising and selling horses in the county of Missoula, wished to change her residence to some other county within the territory, in the hope of finding better ranges or conveniences for her business,— perhaps to Dawson, Custer or Gallatin county,— and should set out with her property, seeking a new residence, and it should require thirty or forty days to accomplish the journey, she may protect her property while en route (if her residence in Missoula aud her declaration as sole trader, and separate list in that county, would not protect it until she had gained another residence within the territory), by filing her property list in each county that she entered, providing she had no residence outside of such county. And in such case a creditor of the husband would have no cause to complain. If she was still a resident of Missoula county, her declaration would protect the property until-she had lost her residence there and gained one elsewhere. If she had lost her residence in Missoula, and had no residence outside of the county where her list was filed, then her residence was within such county, and her list, properly filed there. If. a person has gained a residence in one place, he retains it until he has gained a residence-elsewhere.

The judgment is affirmed, with costs.

Judgment affirmed.