Kleinschmidt v. McAndrews

The plaintiffs in error, who were plaintiffs below, brought an action of replevin in the district court for the Third judicial district in the territory of Montana, for the recovery of personal property which had been taken under a writ of attachment by the defendant McAndrews, as sheriff, at the instance of the other defendant, Bristol, a creditor of one Ingersoll, whose goods he claimed them to have been at the time of the levy. The plaintiffs claimed title by virtue of a bill of sale from Ingersoll, made before the seizure under the attachment. The transcript of the record shows that the cause came on for trial on March 22, 1880, before a jury. The plaintiffs put in evidence a bill of sale dated Helena, March 29, 1879, conveying to them the goods in controversy, consisting of a stock of merchandise, other personal property, and choses in action, in the store of Ingersoll, in the town of Vestel, Deer Lodge county, with authority to sell and dispose of the same, and apply the proceeds pro rata to the payment of the indebtedness due from Ingersoll to the plaintiffs respectively. The record then contains certain stipulations between the parties in respect to the conduct of the cause, and a recital of the testimony adduced by the plaintiffs. It then proceeds as follows:

'The whole evidence on the part of the plaintiffs showed that the bill of sale referred to was executed by Ingersoll, and delivered to plaintiff in the office of Sanders & Cullen, in Helena city, in Lewis and Clark county, M. T., about 9 o'clock P. M. on the twenty-ninth day of March, A. D. 1879; that the goods, etc., were in possession of Stevenson, his clerk, at Vestel, in the county of Deer Lodge, about twenty-three miles distant; that after the writing mentioned was delivered to plaintiffs, as aforesaid, it was expressly agreed that plaintiffs should go out to Vestel and get possession of said property, and that said Stevenson should turn said property over to them; that said plaintiffs went at once, and sent an agent with said 'bill of sale' to Vestel; and the evidence was sufficient to go the jury, and tended to show that he took possession of said property about 4 o'clock on the morning of the thirtieth of March, being the following morning after the execution and delivery of said writing; that he took with him said writing, exhibited it to said Stevenson, then in possession as clerk of said Ingersoll, and that he made no objection, but delivered him (said agent) the property aforesaid, being the property in controversy, and that the said Stevenson, the said clerk of Ingersoll, after said agent of plaintiffs so had possession, remained with and assisted said agent until the levy of the attachment by the sheriff on the thirty-first of said March. That the plaintiffs and defendant Bristol during this time were creditors of the said Ingersoll, for the purposes of this trial, was mutually agreed and conceded as a fact on the trial, and so entered accordingly as an admission.'

It is thereupon stated that the plaintiffs then rested their case, and the defendants made a motion for a nonsuit, on the ground, among others, that there was 'no sufficient case made out so as to authorize the submission of the same to the jury,' and more particularly that 'the evidence shows that there was no immediate change of possession accompanying the 'bill of sale,' or assignment of said property, and that in the mean time, between the execution thereof and the taking of such possession, if any was taken, defendant Bristol was a creditor of said Ingersoll, and his attachment duly levied on the thirty-first day of March, A. D. 1879.' The record then proceeds as follows:

'Which said motion was, after argument, duly submitted to the court, who thereupon granted the said motion, and directed judgment to be entered in favor of the defendants and against the plaintiffs. To which ruling of the court the plaintiffs then and there duly excepted; and thereupon judgment was entered in the case as follows, to-wit:

"JUDGMENT OF NONSUIT.

"[Name of court. Title of cause.]

"This action came regularly on for trial. The said parties appeared by their respective counsel. A jury of twelve persons was duly impaneled and sworn to try said action. Witnesses on the part of plaintiffs were duly sworn and examined. After the said plaintiffs had closed their case said cause was heard upon defendants' motion for a nonsuit, and duly submitted to the court for consideration and decision, and after consideration thereon the court sustains said motion, and orders judgment for the defendants accordingly. Wherefore, by virtue of the law and by reason of the premises aforesaid, it is ordered, adjudged, and decreed that the said defendants do have and recover of and from said plaintiffs all the property in the complaint, affidavit, and pleadings in this action described, or, in case possession of said property cannot be had, the value thereof in accordance with a certain stipulation filed herein April 11, 1879, and introduced in evidence herein, and that they recover their costs in this cause expended, taxed at the sum of $63.50.

"Judgment entered March 22, A. D. 1880.'

'To the entry of which said judgment the plaintiffs then and there excepted, and ask the court to sign this bill of exceptions, and that the same be made part of the record, which is done accordingly this twenty-second day of March, A. D. 1880.

[Signed]

'D. S. WADE, Judge.'

From this judgment there was an appeal by the plaintiffs to the supreme court of the territory, where it was affirmed. To reverse the judgment of that court this writ of error is prosecuted.

M. F. Morris, for plaintiffs in error.

E. W. Toole and J. H. Toole for defendants in error.

MATTHEWS, J.