17 S.D. 461 | S.D. | 1903
This is an action by the plaintiff to recover of the defendants the value of certain chattel mortgage' property alleged to have been converted by the defendants. Verdict and judgment were for the plaintiff and against Albert C. Eveleth, and he has appealed to this court. On the trial the action was dismissed as to Prank W. Eveleth and John P. Smith. The plaintiff’s claim was based upon a chattel mortgage executed to him by Prank W. Eveleth on April 5, 1901. The defendant, Albert C Eveleth, claims the property under and by virtue of a chattel mortgage executed on the 26th day of March, 1901, which mortgage was claimed to have been delivered to his attorney and recorded on that day. This latter mortgage was foreclosed by Albert C. Eveleth, and the property sold by the sheriff to satisfy a note of $350, with interest, executed by the said Prank W. Eveleth to the said Albert C. Eveleth. The principal ground relied on by the plaintiff on the trial was that the mortgage from Prank W. Eveleth to his brother, Albert C. Eveleth, was never delivered to him, and that his mortgage, therefore, having been duly delivered and recorded, constituted a prior lien upon the property. The plaintiff, in his complaint made the following allegation: ‘ ‘That immediately after the execution and delivery of the said note, and the filing of said chattel mortgage securing the same; the defendant Prank W. Eveleth, confederating with his brother, Albert C. Eveleth, commenced to secretly dispose of large and valuable portions "of said above described property, subject to the plaintiff’s said mortgage, and converting the
It is contended by the appellant, among other points, that the court erred in its charge to the jury as above set forth in relation to the alleged conspiracy between Frank W. Eveleth and Albert Eveleth, as all the evidence upon that issue was stricken out with the consent of the plaintiff’s counsel, except as to Frank W. Eveleth, and that the action as to him was subsequently dismissed, before the close of the trial.
For the error of the court, therefore, in his instruction to the jury, the judgment of the court below and order denying a new trial are reversed.