White v. Pease

Minee, J.: Plaintiff brought this action to recover $880, the value of 88,000 pounds of wheat, oats, and barley, alleged to have been unlawfully converted by the defendants on September 18, 1895. Defendant Pease answered, and denied the allegations of the complaint. Defendants Brigham and Kuss answered, and alleged that one William Kessler and F. P. Kessler were the owners of the property in question at the time it was alleged to have been converted; that an execution in favor of defendant Pease against said William and F. P. Kessler was duly issued out of the Third district court, September 16, 1895, and placed in the hands of said Brigham and Kuss, as United States marshals, for service; that only 62,285 pounds of said grain was taken from the possession .of William and F. P. Kessler thereon; that the same was sold as their property by virtue of said writ; and that said grain was sold for the sum of $835.94. Judgment was entered for the plaintiff in the sum of $880 damages. The defendants moved for a new trial, which motion was overruled, and this appeal is taken from the judgment and from the order overruling defendants’ motion for a new trial. Respondent moves to dismiss the appeal from the order overruling defendants’ motion for a new trial on the ground that no appeal lies from an order overruling a motion for a new trial, because the order is not a final judgment. In the case of the North Point Consolidated Irr. [172] Co. v. Utah & Salt Lake Canal Co., 14 Utah 155, this court held that an appeal from an order made pendente lite, granting a temporary injunction, was not an appeal from a final judgment from which an appeal would lie, under section 9, art. 8, of the constitution. In Eastman v. Gurrey, 14 Utah 169, this court held that the constitution had taken away the right of appeal from an order vacating and setting aside a judgment, and that such an order was not a final judgment, from which an appeal would lie. We are also of opinion that an order refusing to grant a new trial comes within the rule laid down in the above cases, and that such an order is not a final judgment from which an appeal will lie to this court, under section 9, art. 8, of the constitution. The judgment in this case was final. The proceeding on motion for a new trial had reference to the regularity of the judgment. The order refusing a new trial was an order confirming its finality. We are of the opinion that any errors committed by the trial court in granting or refusing to grant a new trial, and any affidavits used on said motion, if properly identified, and- embodied in a bill of exceptions, or otherwise properly preserved in the record, may be reviewed on appeal from the judgment. Comp. Laws Utah 1888, § 3652. The appeal from the order denying defendants’ motion for a new trial is dismissed. See cases cited in above-mentioned opinions. Also Young v. Shallenberger, (Ohio Sup.) 41 N. E. 519; Hodsworth v. State, (Mass.) 18 N. E. 430; Laber v. Cooper, 7 Wall. 565; Smith v. Publishing Co., 5 C. C. A. 91; Kearney v. Snodgrass, (Or.) 7 Pac. 309; Roberts v. State, 3 Tex. App. 47; Zizer v. Jones, 48 Md. 116; Sams v. Hooyer, 33 S. C. 401. The plaintiff, who resided in Beaver, claimed the property by virtue of an alleged bill of sale made to him by . [173] William H. and E. P. Kessler, September 15, 1896, at 4 o’clock p. m. That he took possession of the grain contained in three houses or bins on vendors’ farm in Beaver Bottoms, some 45 miles from Beaver, and retained possession thereof until about 9 o’clock in the forenoon of September 18th, when he returned to Beaver for the purpose of obtaining teams to draw the grain away, he having received permission to use the bins until he could draw the grain away. On arriving at Beaver, he was informed by the marshal that the grain had been levied upon by virtue of the execution referred to. The levy was made shortly after plaintiff left for Beaver, and the officer was informed, at the time of the levy, by Kessler, that the plaintiff owned the grain. No one was left in possession of the grain at the time of the levy, unless it was Kessler, who resided on the ranch, which was located in a remote locality. The appellants contend that this transfer was void under section 2837, Comp. Laws Utah 1888, for the reason that no continued change of possession or delivery, within a reasonable time, took place, and allege error in the refusal of the court to grant a nonsuit. Section 2837, Comp. Laws Utah 1888, reads as follows: “Every sale made by a vendor of goods or chattels in his possession or under his control, and every assignment of goods or chattels, unless the same be accompanied by a delivery within a reasonable time, and be followed by an actual and continued change of possession of the things sold or assigned, shall be conclusive evidence of fraud as •against the creditors of the vendor, or assignor, or subsequent purchasers in good faith.” The grain in question was located in a remote locality, away from transportation. It was bulky and inconvenient to carry away without considerable time and preparation. The grain was in bins or granaries, of which the plaintiff had the posses [174] sion. After plaintiff obtained tbe bill of sale and possession, be started to procure means to carry it away. Before tbe officer levied be was notified of tbe sale to plaintiff. Under tbe statute there must be a delivery witbin a reasonable time, and sucb delivery must be followed by an actual and continued change of possession. A reasonable time should be allowed in which to make tbe delivery. What was a reasonable time, under all tbe circumstances of tbe case, and whether tbe transaction was fraudulent or not, was a question for tbe jury to consider under the facts shown. Everett v. Taylor, 14 Utah 242 ; Farr v. Swigart, 13 Utah 150; Dubois v. Spinks, (Cal.) 46 Pac. 95; Hill v. Hobart, 16 Me. 164; Thomp. Trials, § 2014. Mr. Webb, a witness for plaintiff, was allowed to state on direct examination, under objection from tbe defendants, that be was at Kessler’s place oñ tbe day of tbe sale to see about getting a school. Mr. Reed was with him. Reed said to Kessler that be wanted to sell him some fish. Kessler replied that be could not buy tbe fish. Reed said be would take grain in payment. Kessler replied that be bad no grain; that be bad just sold it to* White, — turned it over for a debt. This conversation does not appear to have taken place at tbe time of tbe sale, or during tbe negotiations for the sale, but, as appears from it, tbe grain had previously been sold to-White. It was therefore no part of tbe res gestee, and it was error to admit it, even though White was present. Mr. Proutt, a witness for tbe defendants, who purchased oats at tbe execution sale, was asked what price be paid for sucb oats. Tbe question was objected to, and ruled out. It is well settled that tbe price tbe property brought at execution sale is admissible, as having some tendency to prove value. We think it was error to exclude this testimony, as well as other testimony of like [175] character that was offered by the defendants. Hutchinson v. Poyer, 78 Mich. 337; Baker v. Seavey, (Mass.) 40 N. E. 863; Brigham v. Evans, 113 Mass. 538; Croak v. Owens, 121 Mass. 28; Campbell v. Woodworth, 20 N. Y. 499; Smith v. Mitchell, 12 Mich. 180; Davis v. Zimmerman, 40 Mich. 24; Dyer v. Rosenthal, 45 Mich. 588. Defendant offered in evidence the judgment roll, with the execution and return of the marshal attached, showing the sale of the goods in question, and what they sold for. Plaintiff’s counsel moved to strike out all that part of the return which referred to the price the grain sold for at the execution sale as immaterial and irrelevant. The court sustained the objection, and ‘the return was stricken out. We think this was error. While this evidence may not'be conclusive as to value, yet it is prima facie evidence of value, and should not have been stricken out. Herm. Ex’ns, § 241, p. 288; Worthington v. Hanna, 23 Mich. 530; Walrath v. Campbell, 28 Mich. 111. There are many other errors assigned, but we do not think they merit further consideration. For the reasons given the judgment is reversed, with costs, and a new trial granted. ZaNE, C. J., and Haet, District Judge, concur.