Granning v. Swenson

Dicjhns.on, J. This action is to recover the value of a quantity of lumber seized by the defendant, the sheriff of Hennepin county, under an execution against the property of the plaintiff’s husband. It appeared on the trial that the plaintiff had entered into a contract for the purchase of certain lots of land, and the evidence [385] tended to show tüat she had purchased this lumber, which had been delivered on such lots, and that she was having a house erected thereon. She lived with her husband elsewhere. Upon the question of fact as to whether the plaintiff or her husband had purchased this lumber, the verdict of the jury is conclusive. The plaintiff showed that, after the levy by the defendant, she caused a written notice of her claim to be served on him; but it did not appear that her notice of claim was supported by affidavit, in accordance with the provisions embraced in 1878 G. S. ch. 66, § 154, and for that reason the defendant moved that the jury be instructed to return a verdict in his favor. This motion was properly refused, for the case was certainly not such that the court could hold, as a necessary conclusion from the evidence, that the lumber was in the possession of the plaintiff’s husband, and not in the possession of the plaintiff. It has several times been decided that the statute above cited is only applicable in cases where the property seized has been found in the possession of the defendant in the writ so as to create an appearance, or a prima fycie presumption, of ownership in him. Barry v. McGrade, 14 Minn. 163, (Gil. 126;) Tyler v. Hanscom, 28 Minn. 1, (8 N. W. Rep. 825;) Ohlson v. Manderfeld, 28 Minn. 390, (10 N. W. Rep. 418.) The court could not have granted the requested instruction without deciding in favor of the defendant an issue of fact as to the possession, concerning which the evidence was at least as favorable to the plaintiff as to the defendant. There was no prejudice to the defendant in showing that he was notified of the plaintiff’s claim after he made the levy. There was no error in refusing to receive in evidence the list or schedule of the lumber made by the witness Perkins. The defendant was not denied the right to show by this witness what the lumber in question consisted of, but the written statement which he had made of it was not competent evidence of the fact. ■ It was not even shown by the testimony to have been a correct statement. Concerning the seventh assignment of error, it is enough to say that the offered testimony of the witness Borreson was only admis [386] .-sible, if at all, to impeach the testimony of the plaintiff’s husband; -and the record does not show that the proper foundation was laid by first calling the attention of the latter to the impeaching state-•rnents concerning which the testimony of Borreson was offered. We ■have not overlooked the testimony of plaintiff’s husband regarding a similar conversation. Whether the witness Borreson was the same -person there referred to as the “gentleman sitting there with glasses,” .-and whose name, as Granning testified, was not Borreson, does not appear. (Opinion published. 52 N. W. Rep. 30.) The discretion of the court was certainly not exceeded in denying ..a new trial upon the ground of newly-discovered evidence. Order affirmed.