Woods v. Berry

The opinion states the facts. Bach, J. This is an action of claim and delivery. The defendant, who was sheriff of Missoula County, in answer to the complaint, admits taking the property; and he seeks to justify the taking by alleging that he seized the property under and by virtue of certain writs of execution issued upon judgments in favor of several different parties plaintiff, and against Savage & Reed, defendants; that Savage & Reed were plaintiff’s vendors; and that the sale between Savage & Reed and the' plaintiff was made without any consideration whatever, and was so made for the purpose “ of defrauding and cheating and swindling the creditors ” of Savage & Reed. The testimony shows that the plaintiff bought several notes executed by Savage & Reed, amounting to several thousand dollars; that he paid nine dollars for the same; that thereafter he bought from Savage & Reed the goods mentioned in the complaint, for the price of six thousand dollars, the payment being made by surrendering the notes of Savage & Reed for that amount; that after such purchase and sale the plaintiff kept the goods in the — 200 — store formerly used by Savage & Reed; that at the time of the sale he removed from the store the sign of Savage & Reed, and substituted therefor a sign bearing his own name; that he employed the clerks who were formerly in the employ of Savage & Reed. The plaintiff further testified: “There was no understanding that I was to pay any one any part of what I collected on the notes. I was not to pay anything more than I had paid for the notes. They were placed in my hands without reserve.” The ease was tried by the court and jury. Verdict was for the plaintiff, and judgment was entered in favor of the plaintiff. Thereafter motion for a new trial was heard and denied. The appeal is from the judgment, and from the order denying the motion for a new trial. Is the evidence in this case insufficient to justify the verdict? The facts in the above summary of the evidence are such that the jury might have found fraudulent intent, or fraud in fact, and some of that evidence might have justified the jury in finding that there was no actual delivery of the property to the plaintiff, or a continuous possession thereof by the plaintiff. The purchase of notes to the amount of several thousand dollars for the sum of nine dollars may have been a cover for fraud in fact, or it may have been a bona fide purchase of 'the notes by the plaintiff, who took the risk of collecting; he declares that he was the owner, and that there was no agreement between him and the original holders of the notes, or with any one else, to account for the overplus, if any. In the one case it might be evidence of fraud; in the other, there could not be fraud inferred. The fact that he kept the goods in the same store is evidence tending to prove fraud in fact, and also that there -was no actual change of possession. The change of the sign was a question for the jury to consider, as was also the employment of the former clerks of the vendors. — 201 — But these are facts merely tending to prove fraud and want of actual delivery. The jury passed upon those facts; and the jury, by their special verdict in this case, find, — 1. That there was no fraudulent intent; 2. That there was an actual delivery, and a continuous change of possession, of the goods. This court cannot review that verdict, there being evidence to sustain it. The complaint alleges that the plaintiff was the owner and in possession of certain goods “ of the value of four thousand dollars.” The complaint contains no ad damnum clause. For that reason the defendant claims that the complaint does not state facts sufficient to constitute a cause of action. The judgment asked for the return of the property, or, in case return could not be had, then for the value thereof. It has been held by this court that an ad damnum clause is not an essential allegation. Loeb v. Kamak, 1 Mont. 153. The next point relied upon is the refusal of the court to allow defendant’s counsel to ask certain questions for the purpose of showing that the plaintiff was not the real party in interest. It is not alleged in the answer that the plaintiff was not the real party in interest; there was no issue as to that, and the questions were properly disallowed. Savage v. Insurance Co., 4 Bosw. 2. To the instructions given by the court at the request of the plaintiff the defendant took the following exception: “Now comes the defendant, and objects and excepts to giving to the jury the instructions asked for by the plaintiff, numbered 1 to 16, inclusive, and objects and excepts to the giving of each and every one of them, for the reason that the same and each, and every one of them, are contrary to law, and not warranted by the evidence.” Is this exception of such a nature that this court can consider it? There have been many decisions upon this point in this court, some of which seem to be conflicting, while as a matter of fact they are in — 202 — harmony with one another, and the seeming inconsistency arises from this'cause: that the reason given for the decision were, not distinctly specified. The three leading cases in this territory are Griswold v. Boley, 1 Mont. 545, which has been cited in many others; McKinstry v. Clark, 4 Mont. 370, which arises on a different question, and which, while it approves of the former case, still holds that the exceptions were properly taken in that case; and Gum v. Murray, 6 Mont. 10, which approves Griswold v. Boley. While considering this proposition, care must be taken to distinguish between these two questions, to wit: 1. What is the proper manner of taking exceptions to instructions ? 2. To what extent must the error complained of be particularly stated in an exception to an instruction? To the first of these questions, the cases of Griswold v. Boley and Gum v. Murray are specific and direct answers. To the second of these questions, the case of McKinstry v. Clark is also a specific and direct answer; and while it approves the doctrine as stated in the other cases, it holds that the manner of taking the exceptions in that case were in colnpliance with the rule as stated by those cases; and it also states what is a sufficient pointing out of the error complained of. Now, let us consider these cases more in detail, commencing with the'case of McKinstry v. Clark, and examine the points actually decided in that case. In order to carefully ascertain and point out the distinction, the transcripts in the last two cases have been examined. In the case of McKinstry v. Clark, the appellant saved his exception in this mánner: He copied the first instruction given by the court at the request of the respondent, and at the end thereof he took his exception by adding the following words: “ To the giving of which .instruction the plaintiff excepted.” He then copied the second instruction, and took his exception in the same — 203 — mode and manner. Every exception which he took was taken in that way; in other words, he took a separate exception to each separate instruction. It was declared by the court,— 1. That the exceptions were properly taken as to manner; 2. That there was a sufficient specification of the error. We will consider the first point further when we consider the other cases. As to the second point decided, section 281 of our code defines an exception, and declares what an exception shall contain; and as far as that definition is concerned, our code differs from that of California, and from that of every state to whose decisions our attention has been called. Therefore the rule of practice in that respect must be found in our own code, without resort to authorities decided upon different and dissimilar provisions. Section 281 of the code provides: “ The point of the exception shall he particularly stated, except as provided in relation to instructions,” etc. It is plain that the intent of the legislature was that, in an exception to an instruction, the point of the exception need not be particularly stated; and so the court declared in McKinstry v. Clark. The propriety of the intent of the legislature becomes manifest when we consider how nearly impossible it would he for counsel, at the end of a protracted trial, to point out particularly in what respect the instruction complained of was contrary to the law, as applied to the particular case, or in what respect it was contrary to the evidence, and to reduce the whole objection, in each of its particulars, to writing. In some states, these difficulties resulted in a rule declaring that instructions will be deemed to have been excepted to. In this territory, those difficulties resulted in the declaration contained in section 281, that the point of the exception need not be particularly stated in an exception to an instruction. — 204 — We will now consider the first question, — “In what manner must an exception be taken to an instruction?” and in connection therewith the cases of Griswold v. Boley and Gum v. Murray. The manner of taking the exception in those cases is almost identical with that in the case at bar; and the difference between the manner of taking the exception in those cases and that used in McKinstry v. Clark is manifest. In the former cases, including the case at bar, there was one, and only one, exception to several instructions in gross; while in McKinstry v. Clark there was a separate exception, taken separately, to each separate instruction objected to. The first form or manner of taking an exception was declared to be of no avail by the cases of Griswold v. Boley and Gum v. Murray. The second form was held to be good, both as to the manner of taking exception and as to the manner of pointing out the objection, by the case of McKinstry v. Clark. It might be sufficient to say that Griswold v. Boley and Gum v. Murray had settled the practice in this territory; but we will add a few authorities which, because they are founded upon provisions similar in nature to ours, are directly in point. In Caldwell v. Murphy, 11 N. Y. 416, the exception taken was “ to each and every part” of the charge. Held, that the exception was insufficient. In Walsh v. Kelly, 40 N. Y. 556, the form of the exception was “to the charge made by the court, and each and every part thereof.” It was admitted that some of the propositions in the charge were correct. Held, that such an exception did not raise any question for review on an appeal. In Ayrault v. Pacific Bank, 47 N. Y. 576, the form of the exception was to “the refusal to charge each pf the requests submitted, except so far as embraced in the charge delivered”; and also another exception, “ to every part of the charge which is inconsistent with such requests.” Held, that the exception — 205 — did not present any question for review. In Beaver v. Taylor, 93 U. S. 46, these cases are cited with approval. Mr. Justice Hunt delivered the opinion of the court, and on page 54 of the ease the learned judge says: “ If the entire charge of the court is excepted to, or a series of propositions contained in it is excepted to in gross, and any portion of it thus excepted to is sound, the exception cannot be sustained.” See also Yates v. Bachley, 33 Wis. 185; and Hopkins Manfg. Co. v. Aurora F. & M. Ins. Co., 48 Mich. 148. To state the principle to be educed from the foregoing authorities, and to state distinctly the decision in this court, it is held, — 1. That in order to save his objection to any or all of a series of instructions, the party objecting must save his exception separately to each separate instruction objected to, and must designate, either by number or by any other certain method, each one of the instructions to which he objects; so that the court may definitely know which instructions are objected to, and may consider each exception separately. See Griswold v. Boley, 1 Mont. 545; Gum v. Murray, 6 Mont. 10; 2. In an exception to an instruction it is not necessary to point out the particular error complained of, whether it be that the same is against the law or that it is against the evidence. See Code, sec. 281; McKinstry v. Clark, 4 Mont. 370. In the case on review, the exception stated the ground of objection, to wit, that the instructions “are against the law and the evidence ”; and in this respect the objection was pointed out more particularly than is required by the code, and by the interpretation of the code, as stated in McKinstry v. Clark. There was only one exception, and the form or manner of taking the exception was “to each and every” of the sixteen instructions. It is therefore too general. Griswold v. Boley; Gum v. Murray, and the other cases cited. It is possible that in — 206 — other cases in this court instructions have been considered when the exception was of the same general nature. If there are'such, the respondents did not call the attention of the court to them; but in this case the respondent invokes the rule in his behalf, and it must be enforced. There being no error, the judgment and the order denying the motion for a new trial are affirmed, with costs. Judgment affirmed. McConnell, C. J., and McLeary, J., concur.