Marks v. Wright

LyoN, C. J. The bill of exceptions is not certified to contain all the testimony. Indeed, it contains intrinsic evidence that it does not, for on the trial the plaintiff was a witness in his own behalf, but only his cross-examination is found in the bill. It must be presumed, therefore, that there was sufficient evidence to support the verdict and judgment. We can only determine questions of law which arose on the trial.' At the close of the trial the court stated that no proof was made of a valid judgment. This statement is found in the bill of exceptions. It must be taken to be true. The court held that the execution, which was regular on its face, was a justification to the constable without showing a valid judgment, if he acted in good faith without knowledge that the judgment was invalid or of facts sufficient to put an ordinarily prudent person upon inquiry as to its var-lidity. The court further held that in order to establish a justification on the part of the appellants (who, it must be presumed, were actively concerned in seizing and selling the property), they must show a valid judgment. Having failed to do so, the court directed a verdict against them. Whether this ruling is correct is the principal question raised by this appeal. That it is correct is too well settled, here and elsewhere, to admit of further controversy. Mudrock v. Killips, 65 Wis. 622, and cases cited in the opinion by Mr. Justice Tayloe. The question requires no further discussion or citation of authorities. The defendants offered testimony on the trial for the pur [574] pose of showing (as stated by their counsel) that the bees seized under the execution were turned out to the constable by the plaintiff, at whose request they “were taken in preference to any other swarms.” An objection to this testimony was sustained. The testimony thus offered would only show that the constable was about to levy <m plaintiff’s bees, and that the latter had a choice, which the constable permitted him to exercise, as to which particular swarms should be taken. The fact, if proved, would be entirely immaterial, for it does not tend to show that plaintiff consented to the seizure of his property. No other question of law worthy of consideration is presented in the record. By the Court.— The judgment of the circuit court is affirmed.