62 Minn. 258 | Minn. | 1895
The complaint alleged that, on a day named, ’the plaintiffs, as co-partners, were the owners of and in possession
All of plaintiffs’ assignments of error go to the question of the correctness of this ruling. Their counsel does not now question but that, under the decisions of this court, the interest of one partner in the partnership property may be levied on under process against him, and that, for the purpose of making such levy effectual, the officer may take the property into his custody, and hence that the original taking of this property by defendant under .the writ was lawful; but his contention is that, under the complaint, he had a right to prove a subsequent wrongful conversion of the property by the sheriff, which would render him a trespasser ab initio, and hence that the court erred in ordering judgment for the defendant.
The record discloses all that passed between court and counsel upon the trial, and, while it may give support to the statement of plaintiffs’ attorney in his argument that on the trial counsel “did not know where they were at,” yet we cannot construe the record otherwise than as showing that plaintiffs’ counsel stood squarely and exclusively upon the proposition that the act of the defendant-in levying upon the property and taking it into his custody, under the writ, constituted a wrongful conversion, and was the conversion of which he complained. In the first place, the admissions made on the trial were made for the purpose of presenting some legal question to be raised by defendant’s motion. What this ques
It seems to us that the only inference to be drawn from this is that plaintiffs’ counsel stood exclusively upon the proposition that the act of the sheriff in levying upon and taking the custody and possession of partnership property under a writ against the property of one of the partners individually constituted a wrongful conversion. The trial court could not have otherwise understood counsel’s position. Neither in the pleadings nor during the trial was there the slightest suggestion of any subsequent act of the defendant with reference to the property that would have amounted to a trespass or a wrongful conversion. Further than that, the counsel admitted to the court that, even if there had been, .he could not prove it in this action. Under the admissions as to the facts and the law made by plaintiffs’ counsel in open court, there was no error in directing judgment for the defendant. Having submitted his case upon one theory of the law and facts, a party cannot complain
In some of the remarks made by the trial judge during the trial, as well as in his memorandum, he intimates that, the original talcing under the writ being lawful, even if the sheriff subsequently appropriated the entire property to the payment of the debt of the defendant in the writ, this would not constitute a cause of action in favor of the partnership; that the only remedy would be an action by the other partner for an accounting. Whether the court was right or wrong in this is not important. It is the decision of the court, and not his reasons for it, or his views on questions of law not before him, that is here for review.
Order affirmed.