69 P. 112 | Idaho | 1902
— The respondent in this action (plaintiff below) commenced an action in the probate court of Nez Perces county against C. H. Bussell, as defendant, to recover an alleged indebtedness due to respondent from said Bussell, and caused a writ of attachment to be issued in said action, which was levied upon certain goods and chattels comprising the stock in the saloon conducted by said Bussell, and thereafter such proceedings were had that the respondent recovered a judgment against said Bussell for the sum of $163.75. After the levy of said attachment upon said chattels, the appellant the Washington Liquor Company commenced an action in the justice’s court of West Lewiston precinct against Dudley Gilman, the constable, o recover said chattels, alleging ownership thereof, and executed a bond on claim and delivery, with the appellants John W. Denny and ¿T. Alexander as sureties thereon, conditioned that the said Washington Liquor Company would prosecute the said action, and that it would return the said chattels to the said defendant if the return thereof be adjudged by the court, and for the payment to defendant of such sum as may, from any cause, be recovered against the plaintiff in said action, not exceeding the sum of $200; and upon order duly indorsed upon the affidavit on claim and delivery in such cause the sheriff of Nez Perces county, acting under the instructions of the Washington Liquor Company, seized said chattels, and took them from possession of the constable who had attached same, and was holding same under the attachment levied in the action brought by the respondent against the said Bussell. Upon the return day of the summons in said action of claim and delivery, the plaintiff therein not being ready for trial, the trial was postponed by agreement of parties to the following day, to wit, until September 11, 1900, at 4 o’clock P. M. Afterward, and at said time, to wit, Tuesday, September 11, 1900, at 4 o’clock P. M., the plaintiff in said action, the Washington Liquor Company, being represented by one John A.
We think the motion to strike was properly denied. Before issue joined, the plaintiff was properly permitted to amend his complaint so as to state the facts. We do not think that the allegation in the original complaint to the effect that the action on claim and delivery was determined adversely to the said Washington Liquor Company is so inconsistent with the allegation in the amended complaint that said plaintiff failed to prosecute the said action,' for which reason judgment of dismissal was rendered because thereof, as to make the latter allegation inadmissible in the amended complaint.
The defendants, appellants here, demurred to said amended complaint upon two grounds, to wit: 1. That the said amended complaint does not state facts sufficient to constitute a cause of action; 2. That said amended complaint is uncertain, in this: That it contains no description of the property alleged to have been taken by the defendants, etc. — which demurrer was by the trial court overruled, and the action of the court in overruling same is one of the errors assigned. We think that said amended pleading states a cause of action. The second ground of demurrer was not well taken. The allegation describing the property seized under said claim and delivery proceedings and converted by the appellants in the following general terms, to wit: “A certain stock of liquors, tobaccos, and cigars then the property of C. H. Bussell,” etc. — was sufficient in an action upon said bond.
Upon the trial the court admitted in evidence, over appellants’ objections, the original complaint, summons, and affidavit on claim and delivery, notice on claim and delivery, and other original files in the action commenced by the appellant the Washington Liquor Company, as plaintiff, against said constable, Dudley Gilman, in said justice’s court; and the court also admitted the pleadings and original files in the action brought by the respondent, Keenan, against said Bussell in the probate court, over the objections of said appellants; and the action of the court in admitting such documentary evidence
The eighth error assigned was that the court erred in permitting the witness McConkey, over appellants’ objections, to answer the following questions: “Who was Dudley Gilman? Was he not the defendant in the action?” And the ninth error is based upon the action of the court in permitting said witness to answer the following questions: “Who was P. J. Keenan, who testified at that time? Was he not the plaintiff in this action?” The objection was not made to either of said questions that the same were leading, and, inasmuch as said questions related to introductory matters, the court did not err in permitting the same to be answered.’
A number of other assignments of error are based upon the introduction of certain evidence at the trial, but we do not think that the said assignments of error are well taken, or that it is necessary to discuss them at length. The principal contention of appellants is that the decision and judgment is against law. It is argued that because the said constable, defendant in said action on claim and delivery, failed to procure a judgment for the return of said chattels, or the value of the same fixed, the respondent cannot recover in this action upon said bond. The court found in its findings of fact — and which are, we think, supported by the evidence — that the appellant the Washington Liquor Company, plaintiff in said action on claim and delivery, failed to prosecute the said action; that during the pendency of said action, and before its dismissal, the appellant the Washington Liquor Company sold and disposed of said chattels seized under said claim and delivery proceedings, and converted the same to its own use; and that the appellants failed, neglected, and refused to return the said property, or any part thereof, to the defendant Gilman; and that demand
For the foregoing reasons, the order denying a new trial and the judgment appealed from are affirmed, with costs to the respondent.