10 Mont. 390 | Mont. | 1891
This is the second appeal which has been before the court. The facts which are recited in the reports (8 Mont. 186) will not be repeated in this opinion. At the
We have deliberated upon all the questions which have been presented for adjustment, and arrived at the conclusion that the instructions were conflicting and misleading. As there must be a new trial of the case, we will review all the questions which must be determined at that time in the court below. The executions which are mentioned in the report of the case, supra, were offered in evidence by the appellant. They were regular upon their face, and one of them stated that James M. Bailey recovered, April 22, 1884, in the District Court, a judgment against William J. Palmer, for the sum of $645 damages, and $277.30 costs. The sheriff made this return thereon:—
“I do hereby certify that I received the annexed execution on the twenty-third day of April, A. D. 1884, and executed same by levying upon and selling on the third day of May, A. D. 1884, the following described property, to wit (description of property in controversy), exhibit:—
Amount of judgment........................................$922 30
Accruing costs................................................ 33 14
....................................................$955 44
Amount received from sale................................. 907 00
To deficiency.........................................$ 48 44”
The bill of exceptions states that this evidence was excluded by the court, “for the reason that defendant did not offer to prove any valid judgment upon which said execution was issued, and without such judgment defendant could not justify.” Upon the first appeal, it was held that the judgments, which were entered in favor of said Bailey and Albert Kleinschmidt, and against the said W. J. Palmer, and for the enforcement of which said executions were issued, “ were void and of no effect.” (8 Mont. 194.) Under the decisions of this court, the ruling complained of was correct. (Ford v. McMaster, 6 Mont. 240; Marcum v. Coleman, 8 Mont. 196.)
It also appears in the transcript that “the defendant asked leave to amend his answer, setting up more fully the indebted
The writs of attachment in the actions referred to were issued to authorize the officer to levy upon and hold said property as a security for the satisfaction of any judgment which might be recovered by the plaintiffs. "When the sheriff sold and delivered the same under the foregoing execution, and accounted for the proceeds thereof, the possession and lien which were acquired by virtue of the proceedings in attachment were lost. This property was disposed of without any valid process, and under those conditions the officer is deemed a trespasser ab initio. The writs of attachment in the actions pending against ~W. J. Palmer possess no vitality. In Ross v. Philbrick, 39 Me. 29, this statement appears in the facts: “ The counsel for defendant requested the court to instruct the jury that, as the property sued for was lawfully attached by Burnham, and that suit still pending in court, the plaintiff can maintain no action to recover the value of that property while so pending, on account of defendant’s having sold the same, although the sale was not conformable to the statute.” The court by Mr. Justice Cutting said: “Here, then, was an abuse of authority, and the defendant, according to the rule, was a trespasser ab initio.....But it is contended that so long as the process, upon which the property in controversy was attached, is pending in court, the plaintiff cannot sustain this action. .... An officer who has been guilty of a trespass from the beginning cannot invoke to his aid the process which he has abused; he places himself in the same situation he would have occupied had he seized the property without any process, and taken it from the owner’s possession; and what consequence is it to the officer or the attaching creditor that the suit is pending, when the attachment is dissolved, and can no longer be made available to satisfy a subsequent execution?”
The testimony of the respondent was direct and positive that she owned the property in controversy, and that the horses were at her place on Warm Springs Creek when the sheriff sold them. She was not cross-examined. Two witnesses testified in effect that the horses were “with Mrs. Palmer on her ranch” and in her custody. This evidence was uncontradicted, and admitted without any objection or exception upon the part of the appellant. The issue of ownership could not arise upon this trial because this court laid down the law of the case and said: “ It is no concern of theirs (the creditors) who owns the property; for, unless they have valid judgments to support their executions, they cannot deprive the plaintiff of her possession.” (8 Mont. 195.) The appellant made several offers to prove matters relating to the question of actual possession at the time of the alleged conversion. When they are examined, it is evident that the rules which govern this practice have not been followed. In Chamberlin v. Vance, 51 Cal. 75, the court said: “But when counsel make an ‘ offer ’ of evidence it must appear that the facts offered to be proven, in connection with facts as to which evidence has already been taken, are relevant; otherwise the court is justified in sustaining an objection to the offer. The offer must be complete in itself, and must not omit facts, without which the facts offered are not relevant.” (Smith v. East Branch M. Co. 54 Cal. 164; Schroeder v. Schmidt, 74 Cal. 459.) For an illustration of these views, we will refer to the transcript which says: “The defendant offered in evidence the depositions of John Cartin and Albert Mead .... for the purpose of proving, and by which testimony he would be able to prove, that the property set out in plaintiff’s complaint was not the property of plaintiff, and that she did not own the same, and was not in the possession thereof.” This offer does not embrace one specific fact, and the court was required to ignore it upon the ground of vagueness. The depositions are not in the record, but the appellant did not designate tlje portions of the testimony which he wished to introduce. This right to show that the respondent
The first instruction covered the issue concerning the value of the property, and the following is a part thereof: “You are instructed that the only question for you to consider in this case is the value of the animals mentioned in the complaint. You are the sole judges of such value, which must be arrived at by you from the evidence given by the witnesses. It is admitted by the defendant in his answer that the value of such animals was at the time of their conversion $907, and the plaintiff is entitled to recover such sum, not less than $907, and not more than $2,100, as you may think her entitled to under the evidence.”
The fifth instruction is as follows: - “The jury are instructed that before the plaintiff in this case can recover, she must prove that at the time said property described in the complaint herein was taken and levied upon by the defendant, James B. McMaster, she was in possession thereof, and that said property was taken from her; but if the plaintiff has failed to prove that at the time defendant took said property she was not the owner of it, or in the possession thereof, then the jury should find for the defendant.”
The jury were instructed that the sole question for their consideration related to the value of the property, and that the plaintiff was entitled to recover a sum, which could not be less than $907 nor more than $2,100. The jury were also told that there were other issues to be determined, and that the plaintiff must prove that, at a certain time, she was in the possession of the property, and that the same was taken from her. The instructions were given upon material points and were conflicting.
It has been observed that the testimony of the respondent upon the issue of possession was not rebutted by the appellant; but the court should not have assumed in its charge that the facts were proven, which the evidence tended to establish. This proposition was controverted by the appellant and never conceded. The fifth instruction was correct and applicable to the evidence, and the jury could not find a verdict for the plaintiff
It is therefore ordered and adjudged that the judgment be reversed with costs, that the order overruling the motion for a new trial be set aside, and that the cause be remanded for a new trial.
