McCourt v. Bond

64 Wis. 596 | Wis. | 1885

Cole, 0. J.

In the affidavit the property was described as “oneHempstead piano, No. 11,945.” In the writ it was described as “ one Emerson piano.” ' On the trial the circuit court permitted the writ to be amended so as to make the description correspond with that in the affidavit. It is claimed by the learned counsel for the defendant that this variance or defect was jurisdictional and could not be cured by an amendment. We are inclined to think no amendment of the writ was necessary, but, if it was, it was certainly competent for the court to permit it to be made. The proper piano was taken on the writ. Description is for the identification of the property sued for, and to aid the officer in seizing the right chattel. Here there was but one piano, therefore there was no room for any uncertainty as to the property. The officer could and did have no difficulty in identifying the piano he was commanded to take by his writ. The affidavit, which is deemed the complaint, described it accurately and fully. But if it was necessary to amend the writ so as to make the description therein read precisely as it did in the affidavit, the court had the power to allow it to be made.

The plaintiff claims title to the piano by virtue of an assignment made to him by A. M. Byrnes. Mrs. Byrnes assigned to plaintiff all of ber property, real and personal, of every kind, saving only suck articles of household furniture and other effects as were exempt, for the benefit of her creditors. The plaintiff took possession of the piano under the assignment. The assignment on its face bears date August 14, 1883, but the plaintiff was permitted to show by parol testimony that it was in fact executed on the 15th of that month. This proof was made in order to avoid the objection that the inventory and list of creditors, which were not filed until the 25th of August, were not filed in time. We see no objection to proving the actual time the assignment was executed upon the facts of this case. See Wadleigh v. Markle, 57 Wis. 517. It is said allowing the record to be contradicted and the dates corrected might injuriously affect the defendant. But the defendant did not show that he represented a creditor of the assignor, consequently he was in no position to question the validity of the assignment. This, perhaps, is a sufficient answer to some other objections which counsel makes, as that (1) no title to the property passed to the plaintiff by the assignment, because there was no proof that the assignor owned it; (2) it was not included in the inventory filed; (3) that no affidavit of the nominal assets ivas made and filed, so as to determine the amount for which the assignee should give bond, etc. We suppose possession of personal property is evidence prima faoie of ownership. And, as plaintiff’s counsel observes, since the defendant did not attempt to show that he represented a creditor of the assignor, and had taken the piano from the possession of the plaintiff by virtue of a legal process, he stood in the position of a mere trespasser. He had no right to challenge the title or right of possession of the plaintiff any more than any other stranger. Had he shown that he represented a creditor of the assignor, quite a different case would be presented. As it is, the judgment of the circuit court, we think, was correct, and must be affirmed.

By the Court.— Judgment affirmed.