Chester v. Bower

Myrick, J.: This is an action to recover possession of 2,638 sheep and $500 [48] damages. Defendant, Sheriff, justified under a writ of attachment issued in the case of L. Hirshfeld & Co. v. Wm. Glendenning. Glendenning had been the owner of the sheep, and the question in controversy was whether the sale of them by him to Chester had been, prior to the seizure under the attachment, accompanied with an actual and continued change of possession, and whether the sale was a bona fide transaction, or for the purpose of hindering, delaying, and defrauding creditors, and particularly Hirshfeld & Co. The jury rendered a verdict for defendant, and plaintiff appealed from the judgment rendered thereon. After the jury had been impanneled, on plaintiff’s motion, the Court made an order by which witnesses were excluded from the court-room; but IT. Hirshfeld was excepted from the ruling by the Court, on the ground that he was a party in interest, though not a party of record. We see no error in permitting H. Hirshfeld to be present. Being a party in interest, he should have been allowed to be present and aid in or observe the progress of the trial. IT. Hirshfeld, examined as a witness for defendant, testified to conversations had by him with Glendenning, out of the hearing of plaintiff. It appears that these conversations were parts of talks that the witness had with the parties separately, he reporting to each what the other had said, except the last remark of Glendenning. Plaintiff moved to strike out these conversations with Glendenning, which was refused. We see no error in the ruling. The motion did not separately point to the last remark above referred to. As a circumstance to show change of possession, plaintiff testified that the sheep were driven upon land owned by him. To rebut that evidence, defendant put in evidence a deed of the land from plaintiff to another. Plaintiff offered to prove by parole that the deed was in fact a mortgage. This evidence was ruled out. It was not material to the issue in this case whether the paper was a deed or a mortgage; the material question was, who was in the occupancy of the land ? For the purpose of impeaching the witness Glendenning, and as evidence in rebuttal, plaintiff offered to prove by one Jewett that Glendenning had said, in October, 1877, that he had sold a one-half interest in the sheep to plaintiff. It was an immate [49] rial fact whether he said that or not, as plaintiff does not claim that he purchased from Grlcndenning in October ; nor does he claim a delivery of possession before the first of May, 1878. Appellant, in his points on file, alleges as error the giving of the eighth instruction asked for by defendant. No exception to the giving of the instruction appears in the transcript. Even if there had been an exception, it does not appear to us to be an erroneous instruction, or one calculated to mislead the jury. Judgment affirmed. Thobnton, J., and Shaepstein, J., concurred.