Ward v. Henry

[80] By the Court, Cole, J. The question of jurisdiction raised by the respondent has been ruled adversely to him in the case of Booth v. Ableman, 18 Wis., 495. The evidence offered in regard to the wall paper was clearly competent under the circumstances, and should have been admitted. One ground of defense relied on by the respondent, who represents the attaching creditor, is, that at the time he seized the goods in controversy upon the writ of attachment, he left in the possesssion of the mortgagee merchandize which was included in the chattel mortgages of a sufficient amount to satisfy the mortgage debt. There was some wall paper embraced in the mortgages and in this stock of merchandize thus left in possession of the appellant, and it was proposed to show that somebody else besides the mortgagor owned or claimed to own two thirds of it. Was not the evidence competent and propér to show that the plaintiff had not received his mortgage debt out of the goods left in his possession, and that the mortgagor did not own the entire interest which he attempted to mortgage ? It appears to us that it was competent evidence for this purpose. For, as is well remarked on the brief of counsel, the plaintiff had no lien upon goods included in the mortgages which did not belong to Chase, the mortgagor, and therefore could not make such goods available to pay the mortgage debt. If the mortgages were not void as to creditors, then manifestly the rule of damages is, the amount justly due upon them. Ward v. Henry, 15 Wis., 239. No serious effort is made to sustain the action of the court in giving the second instruction asked by the defendant. Assuming it to be unsound as an abstract proposition, still it is claimed by the respondent’s counsel that it could have had no weight with the jury in making up their verdict, because there was no testimony before them to which the instruction could possibly apply. The mere irrelevancy of instructions given by the court to the jury is said in itself, independent of all other [81] considerations, not to be a sufficient ground to authorize a new trial; but where injustice has been done by the verdict, and it is probable the jury were misled by the instructions, then we think a new trial should be granted. 3 G. & W. on New Trials, 792 et seq.; Cannon v. Alsbury, 1 A. K. Marsh., 76. It appears to us that the second instruction must have affected the verdict of the jury; otherwise we are unable to understand how they could have arrived at the result they did. As the case must go back for a new trial, it would not be proper for us to express any decided opinion as to the validity of the chattel mortgages, and the lonafides of the transactions between Chase and the appellant or his agent, and we will therefore merely say upon the point that we are not satisfied with the verdict, and can only account for it on the supposition that the jury were misled by the irrelevant instruction given. In saying this we do not assent to, neither do we deny, the theoretical soundness of the instruction as a proposition of law. But assuming it to be theoretically sound, it confessedly had no application to the evidence, and we think must have influenced the jury in their finding. The plaintiff requested the court to charge the jury, in substance, that no evidence had been introducéd showing the official character of the defendant at the time he seized the goods on the attachment; but the court held that the fact that it appeared from the evidence that the defendant had served and returned papers in the U. S. district court as deputy marshal, and had been recognized by that court as such, was sufficient proof of his official character. We do not understand the rule to be, that courts take judicial notice of the official character of a deputy marshal (see 1 Greenl. Ev., § 6; Potter v. Luther, 3 Johns., 431); and we are inclined to the opinion that the defendant should have produced some further evidence than the fact that he had served papers in the attachment suit, to show that he was deputy mashal when he seized the goods on the [82] attachment. But it is not necessary to dwell upon this point, as there must be a new trial for the reasons already given. The judgment of the circuit court is reversed, and a new trial ordered. Downee, J., having been of counsel, took no part in the decision of this case.