Padden v. Tronson

OetoN, J. The reasons assigned by the learned counsel of the appellants, for the circuit court to grant a new trial in this case, that-the charge of the judge was contrary to the law, and that the instruction asked ought to have been given, were clearly insufficient. The charge of the court was correct beyond criticism; and the instruction asked required the court to give effect to an alleged agreement to forbear suit, which was without consideration ; for it was the duty of the sheriff, Tronson, to use all necessary and proper means to obtain judgment for the use of the respondent against the person who had so unlawfully removed or converted the property seized upon the attachment. The other reason assigned, that the verdict was contrary to the evidence, as has been frequently decided by this court, will [129] be unavailing unless there was a clear preponderance of the proof against the verdict.' Questions of fraud, negligence and carelessness are very properly left to the jury, and their finding upon them will seldom be disturbed if there was any proper evidence to sustain it. The damage suffered by the respondent was the value of the property taken by the sheriff, Tronson, on the attachment, and the respondent alleges such value to be the sum of $700, in his complaint, and,the complaint further shows that Tronson, the sheriff, and one of the appellants here, recovered a judgment against one John Eobson for the sum of $524.83, as the value of the property taken away from him after it was so seized upon the attachment, including interest and costs. These allegations are not denied by the answer, and the appellants introduced this judgment in evidence as a part of their defense. This would seem to be sufficient to justify the verdict as to the amount of the damages, and also the charge of the court, that the jury should find “ the amount that all the proof shows you that plaintiff’s claim was.” On this showing, we think the circuit court properly denied the motion of the appellants for a new trial. By the Court. — The order of the circuit court is affirmed, with costs. EyaN, O. J., took no part.