Arnold v. Harris

Grant, J. {after stating the facts), i. The case must be reversed for several errors committed by the trial judge. Morris Harris was a merchant in 1896 in Kansas. He failed. Several attachments were placed in the hands of the sheriff for service. The sheriff testified that he levied upon all the property that he could find. The claim of the defendants was that the sheriff then seized all the assets of Mr. Harris. The sheriff was a witness and was permitted to testify under objection and exception that he became satisfied that Mr. Harris had no property upon which he could levy, aside from that on which he had levied, and that he decided that he had none. This was clearly incompetent. This was not a case for expert testimony or opinions as to what the bankrupt had or did not have. It was competent to place before the jury the efforts which the sheriff made by virtue of his writs to find property, and what he found and levied upon. It virtually allowed him to give his opinion that the defendants had no mining stocks or other property in their possession belonging to the bankrupt, as the plaintiff claimed. 2. The court erroneously permitted the following question : “ Do you know what the record and the standing of the various mines of the Oronogo district are, as to which are considered paying and good mines ? and What rank the Morning Star Mine held among the zinc mines in operation in that district ? ” [278] It was claimed that a false statement had been made by one of the defendants as to the amounts received from that mine, and it was claimed that this mining stock was actually the property of the bankrupt. The actual dividends and value of the stock were shown. The reputation or standing of this or other mines was wholly immaterial. 3. A witness was-permitted to testify under objection and exception that defendant Saul was, in his judgment, “a first-class business man for a young man of his age.” The testimony had no bearing upon the issue. The questions were: Did he have money ? and Where did he get it ? The fact that he was a shrewd business man had no-tendency to prove that he got none from his father. 4. The court erred in instructing the jury as to the proof required in cases of fraud. It is unnecessary to state the erroneous instructions. , They are substantially the same as those found in Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 555; McNaughton v. Smith, 136 Mich. 368, and other cases; and this case is ruled by those. Judgment reversed, and new trial ordered. McAlv-ay, Blair, Montgomery, and Hooker, JJ., concurred. ADDITIONAL OPINION. Per Curiam. In writing the above opinion we inadvertently overlooked the claim of the defendants that, if the judgment should be reversed, the record being unnecessarily prolix, they should not be charged with the entire, costs of printing the record. We think this claim well founded, and we therefore hold that the appellant will recover onlv one-half the costs of printing the record.