2 Utah 126 | Utah | 1880
delivered the opinion of the court.
This is an appeal from an order granting a new trial.
The grounds upon which the motion is granted, as stated in the order, are (1) “That the evidence does not support the verdict or judgment, and (2) That it does not appear from the evidence that the defendant had any interest in the property, or if he had any such interest, to what extent or for what amount.”
When the motion for a new trial is founded upon the insufficiency of the evidence to support the verdict and judgment, a large discretion is vested in the court below, in refusing or granting the motion. It must plainly appear that this discretion has been abused before the Appellate Court will interfere with this action in granting the motion upon this ground.
There was no abuse of discretion in this case, and for this reason alone the judgment of the court below should be affirmed. We are also of opinion that the action of the court below should be sustained for the second reason assigned by the court for granting the motion.
This was an action in claim and delivery of personal property, alleged to have been wrongfully taken from the possession of the respondent.
The appellant’s answer denies the wrongful taking of the goods, but does not deny but that they were taken from the respondents’ possession. The appellant justified the taking, as sheriff of Weber County, upon an attachment against one Eorbes and in favor of Greenwell & Co., and alleges that the property in question was the property of said Forbes.
It will be observed that the respondents in this case are strangers to the attachment proceedings. The appellant had only a special interest in the property — a special lien upon it— for the purpose of making the amount of any judgment which might be obtained in the attachment suit.
Upon the trial the appellant contented himself with offering in evidence the attachment proceedings, showing simply their irregularity. No offer or attempt was made to prove the existence of any debt.
The authorities are clear that where the property is taken from the possession of a third party claiming title to them, a judgment must be shown if the officer justifies under an execution or a debt, if under a writ of attachment.
To meet- this we are referred to the language used by us, when the case was before us on a former appeal. 1 Utah, 287. We then said, in speaking of the rejection of the offer to prove the judgment in the attachment proceedings: “We cannot
There is no statement of that case further than is shown ini the opinion itself, and we cannot now know all that was dis-'" closed in the record, but in order to justify the language there used, it must have appeared by the proof and in the record, that the property in question was taken by the appellant from the possession of the debtors in the attachment suit.
In this case it appears to have been taken from the possession of the respondents, who are strangers to that proceeding, and are claiming title to it, and proof of the debt was necessary.
The judgment of the court below, in ordering a new trial, is affirmed.
