Zimmerman v. Lamb

| Minn. | Jul 15, 1862

By the Court

Atwateb, J.

This was an action brought by the Appellant to recover the value and damages for the alleged wrongful taking of certain personal property by the Defendants. The answer set up a justification, alleging that the property had been seized by Lamb as Sheriff of Nicollet county, under and by virtue of a warrant of attachment issued out of the District Court of the Third Judicial District, in an action in which George W. Piper was Plaintiff, and one John Johnston Defendant, and alleging that the property belonged to said Johnston. The answer alleges that the warrant of attachment was obtained from and allowed by the Clerk of said Court.

There was a jury trial and verdict for the Plaintiff. The Defendants moved for a new trial, which was granted, and the Plaintiff appeals from the order.

As the Judge who tried the cause has filed no opinion, we are unable to determine upon what ground a new trial was granted, and must decide from the record whether any errors occurred at the trial, entitling the Defendants to the order appealed from.

Upon the trial of the cause, the Defendants offered in evidence the writ of attachment under which the seizure of the property was made, which' evidence was received under objection by Plaintiff. In the course of the trial however, the writ was ruled out by the Judge, who decided that it could not be received for any purpose,' to which Defendants excepted. This ruliug appears to have been made upon the first, objection raised by Plaintiff’to the inirodncMmi of the writ, to wit, “ that it appeared from the face of said warrant that a cause of action appeared to the officer allowing said warrant by complaint, instead of from affidavit as required by statute, and that therefore said writ or warrant of attachment was void on its face.”

We do not deem it necessary to decide whether this objection is well taken, as for another reason we hold the warrant of attachment void. It appears from the answer that the warrant was obtained from and issued by the Clerk of the District Court in which the action against Johnston was pending. In lovejoy & Brockway et als. vs. D. Morrison et als., decided at the last December term of this Court, we held that the allowance of a writ or warrant of attachment was a judicial act, and that a clerk of the Court had no authority to allow such writ. The warrant was therefore properly rejected by the Court below, and though a wrong reason may have been assigned for it, yet as the ruling was . correct, it would form no ground of error, as the defect coukl not have been amended, and the objection might be interposed at any time were a new trial granted.

Upon the trial the Defendants offered to prove that the witness Johnston made declaration that he owned the cattle after the alleged sale by Johnston to Zimmerman.

This evidence was objected to by Plaintiff and excluded by the Court, and correctly as we think. In Burt vs. McKinstry & Seely et al., 4 Minn., 204, we held that declarations made by a party who has conveyed his title or interest in property, made subsequent to such conveyance and disconnected with it, cannot be received to invalidate the title of the grantee, or those claiming under him.

The witness, Piper, on a further examination, testified to having had a conversation with Johnston, and was asked by Defendant’s counsel, whether in that conversation Johnston made any statements as to said property having been disposed of by him, or that he could not let Defendant, Piper, have the same, for the reason that it had been sold or disposed of to another person ? This was offered for the purpose of impeaching the credibility of Johnston, and also to show the fraudulency of the sale. The evidence was excluded.

It does not appear that any proper foundation had been laid for the introduction of this evidence as impeaching testimony, by the proper inquiries of Johnston. Nor was it competent to show tbe fraudulency of tbe sale, for at tbe time of tbe taking, tbe Defendant, Piper, was not a judgment creditor of Jobnston, and bad not shown bimself in a position to question tbe sale on that ground. Since even if tbe property bad been J ohnston’s, tbe Defendants bad no right to take tbe same in tbe manner and at tbe time they did, tbe writ of attachment being void. Tbe evidence was therefore immaterial in any aspect of tbe case.

But it is contended by tbe counsel for tbe Defendants that it was not necessary, after tbe rulings of tbe presiding judge, to offer any testimony, nor that tbe relevancy or tbe sufficiency of tbe testimony at tbe command of tbe Defendants to impeach tbe sale, should appear; that where a decision has been made that excludes evidence under tbe issues, such decision will be reversed and a new trial granted, without requiring tbe party aggrieved to establish in advance tbe fact that be bad testimony relevant and competent to support such issues. This position we presume to be assumed, with reference to a remark of’the judge (which appears in tbe case), on tbe exclusion of tbe writ of attachment, “ that tbe decision as to tbe admissibility of tbe warrant of attachment in evidence, must put an end to tbe defence in this case.”

However improper such a remark might be, if tbe Defendants bad in fact other defence, it does not appear in this case that tbe judge bimself acted upon such view, nor that tbe jury were influenced by it, for much testimony was afterwards received touching tbe sale, and title of tbe property in Plaintiff. This fact, considered in connection with tbe whole decision of tbe Court at tbe time of ruling out tbe attachment, leaves tbe fair inference that tbe remark only applied to tbe defence so far as tbe question of fraud was concerned. Tbe decision was that tbe “ writ should not be received in evidence for tbe purpose of justification or for any other purpose, that no testimony nor evidence should be received th&re-mider, to question tbe validity of tbe pretended sale of tbe oxen from Jobnston to Zimmerman, or to show tbe fraudu-lency thereof, and that this decision as to tbe admissibility of said warrant of attachment in evidence, must put an end to the- defence in this case.”

Had this ruling been incorrect with reference to the question of fraud raised by the answer, it might have relieved the Defendants from making any further offer of proof on that head. But I do not think they were thereby relieved from offering proof, if any they had, to show that no sale was ever made to Zimmerman, if under the pleadings they were entitled to prove such fact. And that the Defendants did not consider themselves precluded from offering such testimony, is shown from the fact, that after such decision, testimony was offered by them, and received without objection, bearing upon that point. In these circumstances, they should have made a definite offer of all evidence which they desired to introduce on the subject, and required a direct and positive ruling of the Court as to its admissibility. It would be unjust to permit a party to introduce some evidence upon a particular issue, and when defeated upon it to claim the benefit of a new trial, on the ground that he was not required to offer all his evidence, from a belief induced by a remark of the Court, that the same would or might be excluded.

If the warrant of attachment be excluded, the only issue made by the pleadings, is the ownership of the property. The allegation of the answer, with reference to the qualified possession of Zimmerman, is only important in its bearing upon that issue, as we held in Derby & Day vs. Gallup, 5 Minn., 119, that a party would not be permitted to plead a justification and also a denial of the possession of Plaintiff. The denial of value is insufficient in form, as it involves a negative pregnant. As the Court did not exclude evidence on this point, and as it does not appear affirmatively that the jury were prejudiced by the remark, nor that the Defendants have any further evidence on the point, we do not think the Court was justified in granting a new trial on this ground.

In the first proposition laid down by the Court in its charge to the jury, we do not think there was error. In the second proposition the Court charged, that the measure of damages which the Plaintiff is entitled to recover, (if any), is the value of the cattle at the time of taking, with lawful interest thereon from that time to the verdict, and such other sum as the jury may deem right to indemnify the Plaintiff - for his loss by tbe taking of tbe cattle from bim under tbe circumstances.”

Whether tbe latter part of this proposition be correct or not, it is unnecessary to inquire, since the value of tbe cattle is admitted by tbe answer, and tbe amount of tbe verdict is only such value with interest from tbe time of the taking. To such amount of damages, at least, tbe Plaintiff was entitled on a verdict in bis favor, and tbe jury were therefore not misled by tbe charge to tbe prejudice of tbe Defendants.

We think the order granting a new trial should be reversed.