O'Brien v. Chiniquy

2 Wyo. 56 | Wyo. | 1879

Dissenting Opinion

Peck J.,

dissenting.

This was an action of replevin for an organ. Judgment was rendered below for the defendant in error. The petition was in common form, and alleged that the plaintiff owned and was entitled to the immediate possession of the instrument, and that the defendant wrongfully took and detained it from her. He plead the general denial; and justification by a levy, made by him, as sheriff, under an execution, issued from a justice’s court against a third party, and directed and delivered to him as sheriff, to execute. Upon the trial, evidence offered under the special plea was ruled out, and properly, upon the ground that a sheriff was incompetent to levy under a justice’s. execution; and the trial was confined to the issue of the general denial. Upon the trial the plaintiff, as a'witness for herself, testified that she purchased the organ, and paid .for it out of her own money, and in installments; on her cross-examination stated that she paid for it $175, then proceeded to enumerate the payments, and specified several, the enumeration amounting to less than the sum; and was then asked who made the other payments; “ she objected to the question, that it was not proper cross-examinationthe objection was sustained; and the defendant excepted. The question was strictly appropriate to the cross-examination; it was confined to her testimony, which was put in to, and tended directly to sustain the affirmative of the issue; and the tendency of the question was directly to sustain the negative of the issue. The judgment should therefore be reversed. Other errors were committed by the district court upon the trial, which should be pointed out, were the case to be ordered to a new trial; but as an affirmance is to be ordered, it is unnecessary for me to do more than to justify my dissent.

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Lead Opinion

Judgment of the District Court affirmed.

Fisher C. J.°, and Blair J., concur.