128 F. 32 | 9th Cir. | 1904
In May, 1898, Joseph Levy, then engaged in business at Juneau, Alaska, transferred his stock of merchandise to one Levine, who transferred the same to Kendall, and the latter transferred it to Antone Marks, the defendant in error. Certain of the creditors of Levy brought actions in the District Court of Alaska against Levy, and in said actions caused writs of attachment to issue, which were placed in the hands of the marshal. The marshal, under said writs, attached and took possession of the stock of merchandise, and upon judgments subsequently rendered in said actions sold the same on execution. The proceeds thereof were delivered to the creditors under an order of the court. The defendant in error brought in said District Court an action of trover against the marshal for the value of the goods so attached and sold. In December, 1898, a judgment was rendered in said action in favor of the plaintiff in error. To review that judgment the defendant in error took the case by writ of error to the Supreme Court of the United States. The Supreme Court reversed the judgment of the District Court on the ground that, inasmuch as it appeared from the undisputed evidence in the record that the goods were in the possession of the defendant in error at the time of the levy under the writs of attachment, the levy and attachment were void, for the reason that the marshal had failed to follow the direction of the laws of the state of Oregon then in force in Alaska (1 Civ.Code Or.[Ed.1887] § 149, subds. 2, 3), which provided: “(2) Personal property capable of manual delivery to the sheriff and not in the possession of a third person shall be attached by taking it into his custody; (3) other, personal property shall be attached by leaving a certified
The plaintiff in error contends that the trial court had no. jurisdiction to hear said cause or to render said judgment for the reason that the action as brought and as originally tried was in the District Court of Alaska, as the same was created and organized under the act of Congress of May 17, 1884, c. 53, 23 Stat. 24; and that while the cause was pending in the Supreme Court, and prior to the decision thereof, Congress passed the act approved June 6, 1900, c. 786, 31 Stat. 321, entitled “An act making further provision for a civil government for Alaska and for other purposes,” whereby the judicial system of Alaska was reconstructed, and a District Court, consisting of three divisions, with a judge, clerk, and marshal for each, was established. The record shows that the plaintiff in error, before the last trial of the cause in the court below, made timely objection thereto, on the ground that the District Court, Division No. 1 of Alaska, being one of the three courts created by the act last above referred to, had no jurisdiction to hear, try, or determine the same. In support of his contention, McNulty v. Batty, 10 How. 75, 13 L.Ed. 333, and other cases, are cited, which sustain the doctrine that where, pending a writ of error to a Supreme Court of a territory from the Supreme Court of the United States, the territory is admitted into the Union as a state, and no provision is made saving the rights of litigants under pending writs of .error or appeals, all authority under the territorial government, including the laws organizing its courts and providing for revision of their judgments in the Supreme Court by appeal or writ of error, become extinguished by the abrogation of the statutes under which the territorial courts were created, and all pending actions are thereby abated. In answer to this, we think it is sufficient to refer to the saving clause in the act of Congress of June 6, 1900,
It is assigned as error that the court admitted in evidence a copy of the redelivery bond executed by the defendant in error in the case of the Willamette Tent & Awning Company against Levy, which was offered in evidence as tending to show that the goods levied upon were in the possession of the defendant in error at the time of the seizure thereof by the plaintiff in error. The objections which were made to the introduction of the copy were, first, that the loss of the original was not shown; and, second, that there was no testimony to show the delivery of the original bond to the marshal. These objections were not well taken. The evidence showed that the paper was a true copy of the original. There was evidence also that the bond was delivered to the marshal’s deputy, whc was in charge of the seized goods at the time. The plaintiff in error was not denied the right to introduce evidence to show, if he could, that the paper was not a true copy of the original, or that the original never came into his possession.
It is contended that the court erred in admitting in evidence the return of the marshal in the same case over the objection that it was incompetent and immaterial. The return showed that on May 6, 1898, the goods in controversy were by the marshal delivered to the defendant in error upon a redelivery bond, by which he and his sureties obligated themselves to return said property to the marshal, or to pay the value thereof in case the same were adjudicated to be
We find no merit in the contention that the court erred in admitting evidence of the docket entry of the clerk of the court to show that on November 12, 1898, execution issued in the case of Willamette Tent & Awning Company against Levy. Notice had been served upon counsel for plaintiff in error to produce the marshal’s execution docket, but it had not been produced. It being competent to admit in evidence the return to the writ, it was proper to prove the issuance of the writ.
Error is assigned to the exclusion of the evidence offered by the plaintiff in error by his witness W. D. Grant as to who was in possession of the store and goods in controversy at the time when he, as deputy marshal, .made levy on the same on behalf of the Powers Dry Goods Company and the West Coast Grocery Company. The witness was asked the question who was in possession of the goods at the time when he went into the store. This was objected to as calling for a conclusion of law, and the court sustained the objection. The witness was then asked who was there when he got there, and he answered, “Mr. Steffin and a man by the name of Adler.” He was then asked if these men were apparently in possession of the store and goods. This was objected to as leading, and the objection was sustained. Witness went on to testify that there was no one else there at the time, that he informed Adler and Steffin what his business was, and that they made no claim on behalf of the defendant in error to the possession or
It is assigned as error that the court excluded the testimony of one O. H. Adsit. The defendant in error had testified on his direct examination that when he took possession of the store and the goods he and Steffin made an inventory. In order to disprove this, the plaintiff in error asked the witness Adsit, who went into the store on the 15th or. 16th day of May, the following question: “You may state to the court and jury what you found there in reference to the condition of the goods; • that is, whether they had apparently been moved or taken out of the boxes, or whether there was anything to indicate that an inventory or invoice had been made.” This was objected to as irrelevant and immaterial, for the reason that the inventory had been taken about May 6th. Counsel for plaintiff in error then stated that he desired to show that the boxes which the defendant in error had testified about were covered with dust, and that the condition of the goods was such as to indicate that they had not been moved for weeks and months. The court excluded the evidence, on the ground that he had confined the plaintiff in error to evidence concerning the possession of the goods. There can be no doubt that the plaintiff in error had the right to call witnesses to contradict any material statement made in the testimony given by the defendant in error. It may be doubted, however, whether the testimony proffered was such as to tend to contradict the statement that an inventory had been made. An interval of 10 or 11 days had elapsed between the date when it was said that the inventory was taken and the time when the witness entered the building. There was no express offer of evidence to show that in that period dust would not accumulate upon the boxes so that they would become as fully covered with dust as they were when the witness saw them, or how it could be demonstrated that an inventory had not been taken. Before it can be said tfiat the trial court erred it must be made to appear that
Error is assigned to the instruction of the court whereby the jury were directed to return a verdict for the defendant in error for such sum as they might find him entitled to under the evidence as the value of the goods taken. The court said to the jury: “I hold that there is no evidence here to show rightful possession in the marshal; that the only evidence now before this court is the testimony showing the possession to be in Marks. Marks has testified that he leased these premises. He has testified that he paid the rent on the premises, and that he was in possession of them before any attempt to levy upon the goods was made. In addition to that, he gave a redelivery bond. That bond is here in evidence, undisputed. Now, upon the case as made, I shall instruct the jury to return a verdict for the plaintiff for such sum as they think him entitled to under the evidence.”
No exception was taken to the remarks of the court or to the peremptory instruction to the jury. We might dispose of the assignments of error with that observation. But we have given the record careful consideration, and have reached the conclusion that there was no error in the instruction as given. The evidence relied upon by the plaintiff in error as tending to disprove the possession of defendant in error consists in inferences to be drawn from the testimony of Kelly and Adsit and from the testimony of Grant, above considered, in which he testified that he found Steffin and Adler in the store at the time of the levy, and that they made no claim that the defendant in error was in possession of or owned the goods. No inference can be drawn from their silence on that subject. Steffin was the clerk of the defendant in error. Both he and Adler doubtless knew that the goods were being levied on under the claim that they were the property of Levy. It is not to be presumed that they were advised of the legal rights of the defendant in error, or knew that the fact of his possession of the store and goods was an obstacle to their seizure under the writs. Grant admitted that within a few minutes after the levy he was met by the defendant in eriror and his attorney, and that they demanded the return of the property on the ground that it was the property of the defendant in error and in his possession, and that the levy wás therefore void. We find nothing in the testimony of Kelly or Adsit tending to disprove the direct and positive testimony of the defendant in error on the subject of his possession. The trial court may direct a verdict in any case where the evidence is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Pennsylvania R. Co. v. Martin, 111 F/586, 49 C.C.A. 474, 55 L.R.A. 361. We find no ground for holding that the court misapplied the rule.
We find no error in the record for which the judgment should be reversed. It is accordingly affirmed.