4 Indian Terr. 472 | Ct. App. Ind. Terr. | 1902
In order to determine the question which we are called upon to decide in this case, we deem it proper to set out the motion for a new trial filed in the court below. It is as follows:
“Comes now the plaintiff, and moves the court to grant it a new trial herein for the following reasons, to wit:
“First. Because of the irregularities of the proceedings of the court and of the prevailing parties, and on account of the abuse of the discretion of the court, by which plaintiff was prevented from having a fair trial.
*475 “Second. 'Because the verdict and decision is not sustained by sufficient evidence and is contrary to law.
“Third. Because of error of law occurring at the trial, and excepted to by the plaintiff.
“Fourth. Because the court erred in permitting the inter-pleader to recover the value of the goods seized under order of attachment herein, when the goods had, prior to the trial of said cause, been sold as perishable goods, and the funds in the hands of the court.”
It will be seen that the first, second, and third grounds set up in the motion almost literally follow paragraphs 1, 6, and 8 of section 5157, Kansf. Dig. (Ind. Ter. Ann. St. 1899, § 3362.) The fourth ground of the motion is the only one which specifically points out the alleged error complained of.
The error assigned by appellant in his brief are as follows:
Assignment of Errors.
“First. The .court erred in overruling the appellant’s motion to vacate the judgment of the commissioner and dismiss the intcrplca for the want of .jurisdiction.
“Second. The court erred in overruling the motion to strilce out the interplea for the goods after they had been sold, and in permitting the interpleader to prove and recover the alleged value of the goods after their sale, and after the proceeds were in the hands of an officer.
“Third. The court erred in permitting the interpleader, Lawrence', to testify as to the value of the goods in controversy.
t ■ “Fourth, The court erred in telling the jurv they could not find the goods were worth more than §300, because the' action was brought in the commissioner's court, and $300 was the limit of that court’s jurisdiction. ;
*476 “Fifth. The court erred in refusing to instruct the jury, at the request of £he plaintiff, as follows: ‘One buying a stock of goods with notice of such facts and circumstances in regard to the business and financial standing and conditions and the purpose of the vendor as would put an ordinarly prudent man upon inquiry is chargeable with the knowledge of all the facts which he could asecrtain by inquiry.”
“Sixth. The court erred in refusing to instruct the jury at the request of the plaintiff ‘ that, if the interpleader purchased the stock of goods without making him take an inventory, that circumstance is a badge of fraud, and, in determining whether or not he purchased with knowledge of existing debts, the jury should consider the question of whether or not the inventory was taken.”-
“Seventh. The court erred in overruling the motion for a new trial, and in rendering judgment against it and the sureties on its appeal bond for the value of the goods as found by the jury at the time the same were seized under the order of attachment.”
The first paragraph of the assignment of error challenges the jurisdiction of the court to .try the pause. And this we must decide whether there be a motion for a new trial or not, because the alleged error appears upon the face of the record proper, without the intervention of a bill of exceptions, and is jurisdictional. See the case of Brought vs Cherokee Nation, decided by us at the present term, page 462 herein, (69 S. W. 937.)
The second assignment of error is covered by the fourth paragraph of the motion for a new trial and therefore it must be considered. But as to all of the other specifications of error, they are not even hinted at in the motion for a new trial, nor do the proceedings and matters to which they relate appear in the record proper, but were brought up on the record,- as they
Examining the motion for a new trial in this case, it will be seen that the only error of the court below assigned with sufficient certainty is the fourth, which is as follows: “Because the court erred in permitting the interpleader to recover the value of the goods seized under order of attachment herein, when the goods had prior to the trial of said case been sold as perishable goods, and the funds were in the hands of the court.” Passing then, to a consideration of the first assignment, which we must consider, because the ground complained of appears on the face of the record proper and is jurisdictional, and therefore need not be assigned in the motion for a new trial: A motion was made and overruled at the trial to dismiss the interplea for the reason that the amount in controversy in the commissioner’s court exceeded the jurisdiction of that court, in this: that the value of the goods attached was alleged to be $300, and damages were also claimed by the interpleader to the amount of $90, making
The second specification of error in the assignment raises the question as to whether the court erred in permitting the interpleader to prove and recover the value of the attached property, which had ljc.cn sold, and the proceeds held by the officer. In the ease of Fly vs Grieb’s Adm’r, supra, the supreme court of Arkansas say: “Since the attached property had been sold and the proceeds were in the hands of the sheriff, it was error, for the court to render a judgment against the plaintiff for the property or its value, nine hundred and fifty dollars. The interpleader was entitled, under the verdict, to his costs and the proceeds in the hands of the sheriff. ■ If the amount did not equal the true value of the property, or if the interpleader were damaged otherwise by the unlawful taking or detention of same, he would have to seek redress in another proceeding. The issue on the interplea is for the property itself, or, if it has been sold,-for its proceeds.” And that case was reversed because of this error. In the case of Swift & Co. vs Russel (decided by
And it appearing that the court below in this case rendered judgment against the sureties and his bondsmen for the value of the goods, instead of for the proceeds in the hands of the officer and costs, the cause is reversed and remanded.