28 Fla. 1 | Fla. | 1891
Tire action here is trespass instituted in the Jefferson
The second count alleges that said plaintiff on the 18th day of June, A. D. 1887, owned and was lawfully possessed of certain money, goods and chattels, wares and merchandise of the value of six hundred and fifty dollars, then and there being in a certain brick storehouse situated in the town of Monticello, Jefferson county, Florida, and that said defendant, Daniel B. Bird, then and there unlawfully, wrongfully and with force and arms entered said store-house and seized and took from the possession of said plaintiff said goods, to-wit: Seventy dollars, lawful and current money of
The defendant, Bird, filed four pleas. The first was the general issue ; second, that the premises and property in the declaration mentioned were not at the time of the alleged trespass the property of the plaintiff, nor were they in his possession as alleged, and this he is ready to verify; third, that he lias not, as alleged in the plaintiff’s declaration, converted to his own use the money, goods and property therein mentioned, nor has he wrongfully deprived the plaintiff of the use and possession thereof, and of this he puts himself upon tlie country; fourth, that the alleged entry of the brick store-house mentioned in the declaration, and tlie seizure of the money, goods and chatties, wares and merchandise then and there being was not a trespass upon the plaintiff as alleged, but the same was done in a lawful manner, and by virtue of certain writs of attachment issued out of this honorable court, which were placed in this defendant’s hands, as sheriff of Jefferson county, which said writs were regular and lawful, and this defendant avers that the personal
No demurrer was filed to any of the pleas, but issue was taken upon all of them, and the case was tried before a jury at the Fall term, A. D. 1887, of the Circuit Court of Jefferson county, and resulted in a verdict and j udgment for defendant, Bird. Upon the return of the verdict by the jury, plaintiff below moved the court to set aside the verdict and grant a new trial for the following reasons: 1. Because the verdict is contrary to the law; 2. Because the verdict is contrary to the evidence; 3. Because the verdict is contrary to both law and evidence ; 4". Because the verdict is contrary to the charge of the court; 5. Because the court erred in not charging the jury in addition to what is contained in the first paragraph of the charge, that if the sale was bona fide and for a valuable consideration, the mere fact that the effect of such sale was to hinder and delay creditors in the collection of their claims, did not render the sale void as to creditors; 6. Because there was error in the second paragraph of the charge, as it tends to leave the impression on the minds of the jury that there was evidence that a part of the consideration for the sale was that Garwood was to retain possession of the goods as he had before, and ■was to take from the store such goods as his family might need from time to time, and was when he had
The errors assigned by appellant are: 1st, that the court erred in admitting in evidence the writs of attachment against Garwood; 2nd, that the court erred in the charge given to the jury, and in refusing to charge the jury as requested by appellant; 3rd, that the court erred in charging the jury, in effect, that before they could find for appellant they must believe that Garwood in making the sale to Post had no design to hinder or delay other creditors in the collection of their claims against him; 4th, that the second paragraph of the charge as given is erroneous, as it assumes and was based upon a state of facts not proven, and the jury was misled by it; 5th, that the court erred in refusing to charge the jury as requested by appellant, viz: (1), That the proceeds of sales made by Post after he purchased from Garwood were not subject to seizure under attachments against Garwood; (2), that property exempt from forced sale under the constitution and laws of the state of Florida is not susceptible of fraudulent alienation as against creditors; 6th, that the court erred in refusing to grant a new trial on the grounds set forth in appellant’s motion.
The first error assigned is based upon the ruling of
From the evidence certified to us by the bill of exceptions, it appears that the appellant, Post, claimed the personal property in question by purchase from Gar-wood, made on the 17th day of June, A. D. 1887. Appellee contends under his second plea that Post did not own the property and was not in possession of it when he levied certain writs of attachment on it, and under the fourth plea he further contends that if Garwood made a sale of said property to Post it was fraudulent and void as to the creditors of Garwood. Appellee seeks to justify the taking of said property under his fourth plea by virtue of certain writs of attachment issued from the Circuit Court for Jefferson county, and that said property was liable to be seized under said writs. It appears from the record that three writs of attachment in the suits of Gustave, Eckstein & Co. against C. J. Garwood, Meinharcl Bros. & Co. against C. J. Garwood, and Frank & Co. against C. J. Garwood, were issued by the Clerk of the Circuit Court in and for Jefferson county, on the 18th day of June, A. I). 1887, directed to the sheriff of said county, commanding him to attach and take into his custody so much of the lands and tenements, goods and chattels of Charles J. Gar-wood as will be sufficient to satisfy the demands of said plaintiffs mentioned in said writs. The writ of attachment issued in the suit of Eckstein & Co. against Gar-wood was made returnable before the Judge of said
The record further discloses the fact that Garwood, defendant in the attachment suits, by attorney, made a motion on the 18th day of June, 1887,before the Judge of said Circuit, at chambers, to dissolve the attachments issued in said suits. The grounds of the motion to dissolve were, that the causes assigned for issuing the attachments were untrue, and which wrere traversed by affidavits, that the recitals in the attachment bonds did not correspond with the waits, and that said writs were not returnable as required by law. A jury wTas called for the issue made by the traverse, the trial on which was postponed, and the other grounds of the motion to
The'objection here presented does not involve the same point that was considered by this court in the case of Dowling v. Bowden, 25 Fla., 712, 6 South. Rep., 765. In that case the sheriff attempted to justify the taking of personal property by virtue of a writ of attachment, but it appeared that he failed to return the writ on the rule day to which it was made returnable, or to show any excuse for not doing so. The objection was not to the form or sufficiency of the writ, but to the conduct of the officer in returning it. Here there is no contention that the officer did not execute and return the writs according to their exigency, but it is insisted that the writs not being made returnable to the next rule day after their issuance, can afford no protection to the officer who executed them, though in obedience to their command. The writs in question ■were based upon affidavits and bonds, and emanated from a court of competent jurisdiction, and were made
The second assignment of error is, that the court erred in the charge given to the jury, and in refusing to charge the jury as requested by appellant. We will consider .the refusal of the court to give charges requested by appellant under the fifth assignment of error. The only charge given by the court to the jury is as follows : “If you believe from the evidence that the sale from Gorwood to Post was honestly made, and that there was no design to defraud his creditors or to delay or hinder them in the collection of their claims against him, then your verdict-should be for
The third assignment of error is, that the court erred in charging the jury, in effect, that before they
The fourth assignment of error is, that the second paragraph of the charge as given is erroneous, as it assumed and was based upon a state of facts not proven, and the jury was misled by it. It must be conceded that the trial judge has no right to assume, in his charge to the jury, a state of facts not proven, and present the same for their consideration. The correct
The fifth assignment of error is, that the court refused to give charges requested by apjiellant. The
The second charge requested by appellant, and refused by the court, is as follows: “The head of a family is entitled under the constitution and laws of Florida to an exemption of personal property to the value of one thousand dollars from forced sale under any process of law, and such property is not susceptible of fraudulent alienation. If you found that Gar-wood had less than one thousand dollars worth of personal property left him after the sale to Post, then you may find for plaintiff an amount sufficient to make $1,000 when added to the value of the personal prop
For the error committed by the court in refusing to give the first instruction asked by appellant, the judgment is reversed and a new trial awarded.