Rider v. Edgar

54 Cal. 127 | Cal. | 1880

Department No. 1, by the Court (from the Bench):

As the case is presented in the transcript, the questions argued by appellant cannot be considered.

It is the established rule that exceptions to the oral charge of the Court below must be specific, and point to the particular portions of the charge claimed to be objectionable. (Sill v. Reese, 47 Cal. 295, and cases there cited.) The rule is equally applicable where, as in this case, counsel shall subsequently claim that all the propositions laid down in- the charge are objectionable. This rule is one of practice, which must apply without exception. It follows, that we cannot inquire whether the Court below erred in respect to the whole or any portion of the oral charge.

Section 648 of the Code of Civil Procedure provides, that when the motion for a new' trial is based upon the ground of insufficiency of the evidence to justify the verdict, the hill of exceptions must specify the particulars in which the evidence is alleged to be insufficient. And § 659 contains a like provision with reference to statements of the case. The only specifications appearing in this transcript which can be supposed to bear upon the error of the jury in rendering the verdict for the value of the 450 sacks of grain, said to have been released by the Sheriff, are the fifteenth and sixteenth. But neither of these call attention to the circumstance of the release by the Sheriff; but, on the contrary, ignore the release entirely, and are based upon the statement that the 450 sacks were never taken by the Sheriff at all.

The Sheriff levied on the grain, and put a keeper in charge of it; for he says in his testimony, (Trans., fol. 157) “ I sent an order to the keeper, and released them,” etc. The levy and appointment of a keeper, who must be presumed to have had control of the property, was a talcing. The law is declared in Phillips v. Brown, 8 Wend. 611, where the Supreme Court of New York said: “To maintain trover or trespass, de bonis asportatis, evidence of an actual forcible dispossession of the plaintiff is not necessary; any unlawful interference with the property, or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain either action.” (And see cases there cited.)

There was evidence, therefore, that the 450 sacks of grain were taken and converted. It would seem that they were subsequently released,-but there is no specification in substance or effect that the jury disregarded the evidence which related to the release.

Judgment and order affirmed.