Dodge v. Chandler

McMillan, J. By the Court It is not necessary to consider the first two objections urged by the plaintiff. The third objection is, that the execution under which the sheriff, defendant here, justifies, was void, because it was issued before the transcript of the judgment was filed, in Goodhue County. ' The answer sets up a judgment in Bamsey County July 14, 1862; a transcript docketed in Goodhue County,' December 1, 1862, and “ that -heretofore, to wit, on or about the 28th day of November, A. D. 1862, at said County of Bamsey, an execution was duly issued out of and under the seal of said District Court for said County of Bamsey by the Clerk of said Court,” &c. By the allegation of the docketing of the transcript on the 1st of December, the authority to issue execution to Goodhue County on or after the 1st of December is distinctly pleaded. But as was remarked by this Court in this case when considering this objection on a former occasion, “ it does not appear absolutely that the execution issued before the docketing of the judgment.” Dodge vs. Chandler, 9 Minn., 102. But in a case of this kind the presumption of law is in favor of the regularity of the proceeding in a Court of general jurisdiction, and since the averment that the execution issued on or about the 28th of November does not rebut this presumption, it must obtain here. Although under the rules of pleading the averment should have been more definite and certain, (Gould's Pl., Ch. 3, Sec. 64), it is not in a case of this kind fatal to the answer. In Lockwood vs. Bigelow, 11 Minn., 113, the defective averment was of an act in pais, and was not aided by any presumption in its favor, and in this respect is distinguished from the present case. The allegations of the answer being sufficient, the question is presented whether they are put in issue by the reply. The reply to these allegations in the an [118] swer is, “ that the said plaintiff * * * has not personal knowledge of the matters therein stated, nor has he the requisite or sufficient information to form a correct opinion as to whether or not said alleged judgment of John Curtis against Andrew Spencer was regularly or legally obtained, or whether the same is valid and of binding force and effect; and for want of such knowledge and information the plaintiff denies each and every material allegation contained in said portion of said answer. * This plaintiff denies that said defendant had any authority, as averred in said answer, to take said property or any portion thereof.” The denial of each and every “ material' allegation ” in a pleading, being a denial of a mere legal conclusion, is bad. Montour, vs. Purdy, 11 Minn., 401. And it inay well be doubted whether there are not other objections to this denial equally fatal. The only question at issue, therefore, was the ownership of the goods by Spencer,- and the fraudulent disposition of the same to the plaintiff. That Spencer was originally the owner of the goods is aclmitted on all hands. If, therefore, the sale to plaintiff was fraudulent as to Curtis, the execution creditor, the defendant must recover. This is a question of fact, and we think the finding of the referee is sustained by the evidence. The fourth objection urged by the plaintiff is that the entire cross-examination of the witness Dodge was' erroneously allowed. Upon the trial before the referee the plaintiff Dodge was sworn as' a witness, and tho bill of sale of the goods in controversy having been shown to him, he identified the signature to the paper as that of Spencer, and stat ed that he saw the paper executed, and it was delivered to him by Spencer at St. Paul at its date; tiiat a portion of the goods were then [119] there, and a part on the route to St. Paul; the portion at St. Paul was then delivered to him; the balance he .saw at Ped Wing in the hands of the defendant before this suit was brought, and demanded them of defendant, who refused to deliver them ; whereupon plaintiff replevied them. The witness also stated, in chief, that he was not acquainted particularly with the value of liquors or brandies. The bill of sale was again shown to him, and he testified that the “ checks indicate that those checked were received here, and the rest behind in possession of the sheriff.” After various preliminary questions,.on cross-examination the defendant’s attorney offered to show that the plaintiff was not, and Spencer was, owner of the property, which was objected to by the plaintiff, and the objection was overruled, to which the plaintiff excepted. For the purpose of sustaining the offer, the defendant, on a cross-examination, showed by the witness all the circumstances o’f the sale, the character of the consideration, and the disposition of the goods by the plaintiff after delivery. In view of the testimony in chief of the plaintiff, we see no reason why, upon a cross-examination, the defendant could not show any circumstances which would characterize the delivery in pursuance of the sale as fraudulent. It is not contended that any of the testimony was incompetent, except as a cross-examination; under such cirumstances, unless it is apparent that some injury resulted, even if the cross-examination was not strictly correct, it would not authorize a Court to grant a new trial. In this case we see no error demanding an interference. Since there was no issue as to the levy by the sheriff, the fact that parol testimony of such levy was received could not have injured the plaintiff, the fact being admitted on the record, and the issuing of the execution not being denied by the re [120] ply, the exclusion of the testimony as to the date of its issuance was not error. It is evident from the record that the referee has found that the defendant is entitled to the full value of the property if it cannot be had. "’This is erroneous. The case shows that Dodge, the plaintiff, is the general owner of the goods, and the defendant has a special property in them by virtue of the levy under his execution. This levy may be discharged, and the defendant’s interest extinguished at any time by the payment of the execution; the amount of the execution, debt, interest and costs, therefore, is the measure of the value' of the special property of the defendant in the goods. Minn. Packet Co. vs. Robertson, decided at this term. But 'this error is not necessarily fatal to the whole verdict. From the facts found by the referee, the amount of the debt .and interest, and at-least a portion of the costs, may be determined by mere computation; and if the value of the defendant’s interest in the goods is fixed at this amount, the plaintiff1 cannot complain. If therefore the defendant will consent to fix the sum he is entitled to recover, if the property cannot be returned, at the amount of the debt and interest and such portion of the costs on the execution as are established by the record, and may be détermined by computation, and will remit the balance, we will direct the judgment to be modified accordingly ; otherwise the judgment will be reversed, and a new trial ordered. Bronson vs. Stickney, 5 Minn., 215.