12 S.D. 296 | S.D. | 1899
This action was brought by the plaintiff, who was a judgment creditor of Alemeth E. Overpeck and Areli L. Overpeck, co-partners doing business as Overpeck Bros., against Lafayette Zollars, as sheriff of Pennington county, and his sureties, to recover damages for the failure of said Zollars, as sheriff, to levy certain executions in favor of the said plaintiff and against the said Overpeck Brothers upon their personal
On the trial the defendants introduced evidence tending to show that Hollis J. Tyler had at various times during several years prior to 1887 advanced to Overpeck Bros., as loans, sums amounting to about $8,000, and that in November, 1893, there was due to Tyler from Overpeck Bros., on account of said loans about the last-mentioned sum, and that to secure said amount the Overpeck Brothers executed and delivered, on the last-mentioned date, to said Tyler, a chattel mortgage upon all the personal property upon which said Zollars was directed by the plaintiff to levy its execution; that said chattel mortgage was duly filed for record, and was a valid, subsisting, and unsatisfied mortgage at the time he, said Zollars, was directed to levy upon the said property. The learned court, in its charge to the jury, gave the following instruction: “The only remaining question is this: Was the mortgage executed by Overpeck Bros, to their father-in-law, Tyler, a valid mortgage at the time of the levy of the execution in the case of the Studebaker Bros. Manufacturing Company against Overpeck Bros. ? And likewise you shall find whether or not it was a valid and subsisting mortgage at the date of refusal of the sheriff to levy upon
The court gave the following instruction, to which appellants excepted: “In this action, by reason of the peculiar situation of the facts in the case, the burden rests with the defendants to satisfy you of the validity and bona fides and good faith of the alleged mortgage of the Overpeck Brothers to their father-in-law, Tyler, Ordinarily, the burden of proof, as you gentlemen presumably understand, rests with the plaintiff, but, upon the contested issue in the case the burden rests with the
The appellants also strenuously contend that the verdict is unsupported by the evidence. They insist that they proved by uncontradicted evidence that Tyler had advanced, by way of loans, to the Overpeck Brothers, from about 1883 to 1886, inclusive, upwards of $8,000, and that there was actually duo Tyler, at the time the chattel mortgage was executed, in November, 1893, about that sum, and that it was not competent for the jury to disregard this evidence, and find that at the time this mortgage was executed there was no money actually due from the Overpecks to Tyler. It is true that Tyler and Areli Overpeck testified there was due from the Overpecks to Tyler