Duprel v. Collins

WHITING, J. Plaintiff seeks to recover the value of certain personal property which defendant as sheriff, seized under attachment and sold under execution issued in an action wherein plaintiff was defendant. Verdict and judgment 'being for plaintiff, and a new trial being refused; defendant appealed from the judgment, and from the order denying a new trial. Appellant assigns errors based upon five certain rulings of the trial court -in the admission and rejection of evidence, and upon the giving of two certain instructions; he also> assigns the insufficienc}'' of the evidence to support the verdict. The sole question in issue upon the trial of this cause was whether the plaintiff, at the time the property in question was seized under the attachment, was in the act of removing from this state. The ownership of the property seized, the value thereof, that plaintiff had been up to that time a resident of this state, and that he made and served upon defendant a good and sufficient claim of exemptions are either conceded or established by undisputed evidence. [1] -The assignments of error, based upon the court’s rulings admitting evidence, present no- questions of sufficient importance to merit extended discussion thereof; in the case of each ruling, except the last, the objection was either not sufficiently explicit, or else was upon an improper ground. The record wholly fails to present the last ruling. We would call attention to! the method employed for presenting these ruling's. The statement of the case contained in appellant’s brief gives the evidence in narrative form; not a question appearing therein. In several places the narrative is' broken into by the insertion of purported objections, rulings, and the noting of exceptions. From the statement itself one could determine neither the question that was objected to nor how much of the preceding recital of evidence was contained in the answer [369] given to the question. Each of the assignments of error contains no reference to the question, objection, or answer, but refers, for record of the grounds for the assignment, to the corresponding specification of error. Each specification contains the question objected to, the objection, and the ruling, with no reference to the page of the brief where the alleged answer to the question will be found, or to the name of the witness of whom the question was asked; the only reference, either in the assignment or the specification, being to the page of the settled reoord, which settled record is not a file of this court. By comparing the questions and objections, as -contained in the specifications- of error, with the narrative statement and alleged objections set forth in the statement of the ease as found in the brief, we have been able, with reasonable certainty, to determine what parts of the narrative statement were called out by the several questions referred to in such specifications. With the single exception of the question referred to in specification Nio. 5, we can find nothing in the narrative statement that would seem to have any connection whatsoever with the question referred to in such specification. Certainly that portion- of the statement which purports to set out evidence which, it is contended, was received over proper objections should present to this court the question, objection, answer, and exception, and the assignment based thereon should refer us to the page of the brief where such statement will be found. [2] Appellant assigns as error an instruction of the court wherein .the court assumed that respondent was a resident of this state. Appellant contends that, under the pleadings, there was ■raised an issue as to plaintiff’s being a resident of the state at the time of the attachment. While it is true such an issue was raised by the pleadings, it is also true that the evidence received presented no such issue. [3] Appellant -complains of the following instruction: “I claim the right of exemptions is a very sacred right under the laws of the state of South Dakota, and not only for the husband or the head of the family, 'but for the wife, and any member o-f the family under a certain age has the right to claim exemptions.” Appellant claims that this instruction wrongfully assumes that the plaintiff had a right to exemptions; that it raises a question which was [370] not an issue, namely, the right of the wife to claim exemptions; and that it had a tendency to work upon the sympathy of the jury. As hereinbefore stated, the sole question for the determination of ithe jury was whether or not, at the time the goods in question were seized under the attachment, the plaintiff was in the act of removing from this state. The instructions must be considered as a whole. From such instructions it was made clear to the jury that plaintiff was entitled to the exemptions if he was not in the act of moving from the state, and that he was not entitled to such exemptions if he was in the act of moving from the state at the ■time the property was seized by defendant. While the issues herein presented no question of the right of plaintiff's wife to claim exemptions, yet reference to that fact could not possibly have prejudiced appellant, in view of the very clear and full instructions directing the jury to the only question in issue. Neither do we think the instructions as a whole, were such as tended “to work upon the sympathy of the jury.” Again we must consider the instructions as a whole, and, while such instructions impressed upon the jury the right which plaintiff ’had to his exemptions, providing he had not forfeited1 such right, and the sacredness of such right, such instructions fully advised the jury that this right, sacred though it may have been, was forfeited by the plaintiff if, at the time the property was taken from -him by appellant, he was in the act of removing from this state. [4] Appellant questions the sufficiency of the evidence to- support the verdict, hut the specifications, filed in the lower court as a part of the settled record and appearing in the -brief, in no -manner specify the particulars wherein the -evidence is claimed to be insufficient to support su-oh verdict. The judgment and order appealed from are affirmed.