Deitsch v. Wiggins/Opinion of the Court

Most of the assignments of error have been made in total disregard of the twenty-first rule of this court. That rule is necessary to the disposition of the business which presses upon us, and it is our intention hereafter to enforce strict compliance with its demands. If errors are not assigned in the manner required, the assignments will be treated as if not made at all, and we feel justified in passing without notice the greater number of those which are alleged to appear in this record. There are, however, some of the assignments which, though not made in full conformity with the rule, we think it is proper for us to consider.

The action was trespass 'de bonis asportatis,' and the plaintiffs in the court below averred 'properly' in the goods in themselves. The declaration was met by a plea of the general issue, and by a special plea alleging that the property in the goods was in O. S. Buell & Co., and that the alleged trespass consisted in a sheriff's seizure under an attachment issued out of the District Court of Gilpin County at the suit of Deitsch & Brothers. The special plea was in some respects informal, but instead of demurring, the plaintiffs traversed its averments, and the parties went to trial on the issues thus formed. It was then a material inquiry whether the ownership of the goods was in the plaintiffs when the seizure was made, or whether it was in O. S. Buell & Co., and to that inquiry the evidence offered by the defendants, that they had belonged to Buell & Co., that during the absence of the firm from the Territory, their clerk, without authority, and in fraudulent combination with the plaintiffs' agent, had made a sale of them to the plaintiffs, was undoubtedly pertinent. If there was no authority to sell, plainly the plaintiffs had acquired no title. And if the sale was a fraud upon the creditors of Buell & Co., the goods were liable to an attachment at the suit of those creditors. It was an error, therefore, to exclude the evidence.

The attachment should also have been received in connection with the proof of the unauthorized and fraudulent sale. It is no sufficient objection to it that it did not itself prove all the facts necessary to constitute a complete defence. It is said the special plea averring the attachment was bad. If so, it should have been met by a demurrer. But we think the plea contained all the averments essential to a justification, and had the facts set forth in it been established, a recovery by the plaintiffs below would have been impossible.

There are other errors apparent in the record, but as they are not properly assigned we pass them without notice.

JUDGMENT REVERSED, AND A VENIRE DE NOVO DIRECTED.