Conely v. Dudley

Hooker, J. The plaintiffs were in possession of certain lumber, claiming title, when it was taken by the defendants upon an attachment against the Mascotte Lumber Company. Plaintiffs brought replevin, and, after proof of the above facts and the value of the property, the court directed a verdict for the defendants, and the plaintiffs removed the cause to this court by writ of error. Plaintiffs’ proof of possession under a claim of purchase from the true owner, and the forcible taking of the lumber without consent, made out a prima facie case. Van Baalen v. Dean, 27 Mich. 104; Rose v. Eaton, 77 Mich. 255. Upham v. Caldwell, 100 Mich. 269, cited by counsel, is readily distinguishable. It then became necessary for the defendants to justify their taking by showing a right or authority superior to that of the plaintiffs. On the contrary, although prima facie wrong-doers, they offered no testimony, but chose to rely on -the claim that the transfer by assignment to the plaintiffs was defective, [124] and induced the court to exclude it. But, if they were wrong-doers, they had no interest in this question. It was necessary to show that, by a valid writ or otherwise, they stood in the shoes of the true owner, or other person having an interest in the property, and had the right to question the plaintiffs’ title. It was, therefore, error to instruct the jury that the plaintiffs could not recover. It is contended that the assignment of error, i. e., “that the court erred in directing a verdict for the defendants,” is not special under Sup. Ct. Rule No. 12. Upon this record this assignment was equivalent to saying that there were facts in the case upon which a jury might find plaintiffs entitled to recover,—a radically different case from one where the court is said to have committed error in directing a verdict for the plaintiffs, or in refusing to direct one for the defendants. In those cases there may be uncertainty as to what the error relied on or point raised is. See Alberts v. Village of Vernon, 96 Mich. 549; Johnson v. Ballou, 25 Mich. 460. It is claimed that the judgment should be affirmed for the reason that the bill of exceptions does not include the assignments of error, as required by Rule 12 as recently amended. Under the circumstances of this case we are not disposed to subject the plaintiffs to a final judgment in the face of manifest error, and the record is such that nothing would be gained by remanding it for correction at plaintiffs’ expense. The rule is a new one, and we are disposed to enforce it with leniency at the present term. Hostetter v. Elevator Co., 4 N. Dak. 357. The judgment is reversed, and a new trial ordered. The other Justices concurred.