Jandt v. South

• Citation: 47 N.W. 779,2 Dak. 46
• Parties: Jandt v. South.
• Decision Date: 31 December 1878
• Court: Supreme Court of South Dakota

47 N.W. 779

2 Dak. 46

Jandt

v.South.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1878.

Appeal from district court, Lincoln county.Bailey & Gifford, for appellant. Joy & Wright and M. B. Davis, for respondent.

BARNES, J.

This is an action by the plaintiff, the owner and holder of a chattel mortgage covering certain personal property described in the complaint, against the sheriff of Lincoln county, who had attached and taken possession of the property in an action brought by certain creditors of the mortgagors. The action was tried by the district court of Lincoln county, a judgment recovered in favor of the plaintiff, and from that judgment an appeal is taken to this court. The answer of the defendant, after alleging the taking of the goods as sheriff of Lincoln county by virtue of an attachment, further avers that the chattel mortgage under which the plaintiff claims is void as to creditors, and therefore the plaintiff is not entitled to the possession of the goods. We see no reason for holding the chattel mortgage void as to creditors; and was that the only question presented on this appeal, the judgment appealed from would be affirmed. We will not, however, discuss this question at length, as for other reasons herein specified the judgment of the court below must be reversed, and a new trial ordered.

The plaintiff claims the possession of the property, and damage for withholding possession from him. Our Code of Civil Procedure authorizes a recovery of damages by the prevailing party for the wrongful taking and detaining of personal property. See the case of Holt v. Van Eps, 1 Dak. 206, 46 N. W. Rep. 689, and authority there cited, (decided by this court at the December term, 1875.) It may be proper here to remark, owing to the confused manner in which the case at bar is in this court, we have some difficulty in determining precisely to what extent we may properly examine the papers and proceedings sent up by the district court on this appeal. There is no certificate of the presiding judge that the bill of exceptions contains all the evidence submitted in the court below, or so much thereof as is necessary to be considered by this court in passing upon the questions presented by the bill of exceptions. Upon page 11 of the bill of exceptions, the followingquestion is propounded to H. A. Jandt, a witness on the stand: “State what damage, if any, you sustained by the detention of the property?” The question seems to have been proper. The answer was not responsive, and clearly objectionable. We give the answer, which is as follows: “It required one of the firm to attend to the case, whose expenses were fourteen or fifteen dollars, and his loss of time to the firm was three days, valued at ten dollars per day, and the expenses of an attorney, fourteen or fifteen dollars.” This evidence was especially objected to, the objection overruled, the evidence allowed to stand, and to this ruling an exception was taken. The thirteenth finding of fact is in these words: “The plaintiff has been damaged by reason of the loss of time and money expended in pursuit of the property, in the sum of one hundred dollars.” In the sixth conclusion of law we find this language: “The plaintiff is entitled to judgment against defendant for the possession of the property by him taken and sold, and to one hundred dollars damages as compensation for time spent and money actually expended in the pursuit of said property.” Now, while this court would not reverse the judgment of the court below, because of the insufficiency of the evidence to support the finding, without the certificate of the court below that the bill of exceptions contained all of the evidence, this court will review the objectionable testimony bearing upon a single question in connection with the finding of fact and conclusion of law based upon that finding; the finding of the court below being properly here upon the record. And when it clearly appears, as in this case, that the evidence was improperly received, and that the finding of fact was based upon that improper evidence, and that the conclusion of law upon that...