Quigley v. Swank

Opinion by W. D. Porter, J., This is an action of trespass brought against a sheriff to recover damages for an alleged wrongful sale of goods of the plaintiff, upon an execution in which her husband was the defendant. About the time of the marriage of the plaintiff to Andrew Quigley, the latter became indebted to Thomas Fell, and, at the time said indebtedness was contracted, gave his judgment-note for the same, waiving the benefit of all exemption laws, While this debt, with its waiver of exemption from execution, was in existence, the property which is the subject of this suit became a part of the furniture of the household which was the family home of plaintiff and her husband. Fell entered judgment upon his note, execution was issued and a levy made, and, thereupon, the plaintiff served a written notice upon the sheriff that she was the owner of the property, and he must not sell [606] it. The sheriff sold the property, and plaintiff brought this action. At the trial, the plaintiff offered evidence as to her own declarations and those, of a witness called in her behalf, made to outside persons prior to the sheriff’s sale, as to the ownership of the property. The offer was stated to be for the purpose of corroborating the testimony of the plaintiff and her witness, and was made during the introduction of the plaintiff’s evidence in chief. Objection was made and, “ for the present,” the court sustained the objection. This ruling is the subject of complaint in the first specification of error. It is true that, under certain circumstances, the previous declarations of a witness, consistent with his present testimony, are admissible when the credit of the witness has been impeached by attacking Kis character, when his testimony is impugned by contradictory proof and when evidence has been produced tending to establish that his testimony is of recent fabrication, or that he has made declarations inconsistent with his evidence at the trial. Such declarations are not admissible until the character of the_ witness has been impeached or his testimony attacked or contradicted. To relax the rule would open a way for the manufacture of evidence without limit. Evidence of previous declarations of a witness for plaintiff, confirmatory of his testimony, are not admissible in the presentation of plaintiff’s case in chief: Henderson v. Jones, 10 S. & R. 322; Craig v. Craig, 5 Rawle, 91; McKee v. Jones, 6 Pa. 425; Bricker v. Lightner, 40 Pa. 199; Hester v. Commonwealth, 85 Pa. 139; Zell v. Commonwealth, 94 Pa. 258; Clever v. Hilberry, 116 Pa. 431. The first specification of error is not well founded. The plaintiff having introduced evidence tending to show that her husband was very reckless and could not buy the property in question, the court permitted the defendant to prove, under exception, that the husband was engaged in a gainful occupation and made good wages. The admission of this evidence is the subject of the second and third specifications of error. That the ruling of the learned court below was correct is too clear to require discussion. The plaintiff had opened wide the door for evidence of this character, and, in spite of the fact that this evidence was produced, it is stated in the history of the case, printed in the paper-book of plaintiff, that “she [607] found that her husband was becoming reckless and it became necessary for her to make provision for the maintenance of herself and family.” In a contest between a wife and a creditor ■of her husband as to the ownership of property found in the possession of the husband, it is competent to show the circumstances and income of the husband: Covanhovan v. Hart, 21 Pa. 495. Both these specifications must fall. The fourth specification of error is based upon the answer of the court to defendant’s fifth request for instructions. The point asked the court to charge that the plaintiff could not acquire title to the property “ unless the money paid for the same was earned by her in an independent business of a permanent character.” The court refused to so charge, but said to the jury that, if the property was paid for by the money of the husband, the plaintiff could not recover. This answer did the plaintiff no harm, for the burden was upon her to show how she had acquired title to the property as against her husband’s •creditor; this she undertook to do by producing evidence tending to show that she had bought the property with money received by her for work which she had done outside the family .and from a business conducted by herself with her husbands’ consent and acquiescence. The .court instructed the jury that, if they believed this evidence, the plaintiff was entitled to recover, and the whole tenor of the charge was to leave the case ■to the jury upon this question of fact. The fifth specification of error complains of the answer of the court to the first point submitted by plaintiff. The point might very properly have been refused without explanation or qualification. There was no evidence whatever that the wife used the money of her husband, with his knowledge or consent, to buy the sewing machine and take the title for herself, nor that he gave her the machine after it had been purchased with his money. The evidence did not present a case of a gift by the husband to the wife of property which was by law exempt from .execution, and Holmes v. Tallada, 125 Pa. 133, and kindred cases have no application to such a state of facts. The burden was upon the plaintiff to show title in herself; she could not recover by showing that property of her husband, which was by law exempt from execution, had been sold by the sheriff. She attempted to show title from sources entirely independent of [608] her husband, the jury found against her upon the question of' fact and the judgment is not to be reversed upon theories which have no foundation in the evidence. Judgment affirmed.