Boice v. Boice

• Decision Date: 27 December 1880
• Citation: 7 N.W. 687,27 Minn. 371
• Parties: Martin Boice v. Howard V. Boice
• Court: Minnesota Supreme Court

7 N.W. 687

27 Minn. 371

Martin Boice v. Howard V. Boice

Supreme Court of Minnesota

December 27, 1880

Replevin for two mares, taken from plaintiff's possession by defendant as mortgagee in a chattel mortgage. A jury was waived, and the cause set for trial by Farmer, J., on June 4 1880, the fourth day of the term of the district court for Fillmore county. On that day the cause was not reached, (the court being engaged in trying another action,) but was brought on for trial on the following day. On that day the attorney of record for plaintiff was not present, and without making affidavit for a postponement of the trial plaintiff employed other counsel, and the cause was tried and submitted. A decision having been filed, and judgment ordered for defendant, plaintiff moved for a new trial, on the affidavit of his attorney of record, stating that on the evening of June 4th such attorney returned from Preston (where the court was held) to his home at Lanesboro, a distance of eight miles, as was his custom when attending the term of court, owing to the difficulty in obtaining suitable lodging at Preston; that on the night of the 4th and morning of the 5th, the country about Preston and Lanesboro was visited by a violent storm, which caused the streams to overflow, whereby bridges were carried away and the roads (including the railroads) between Lanesboro and Preston were rendered impassable, and the attorney was unable to reach Preston or attend the trial. The affidavit further stated that the counsel who appeared for plaintiff had not the opportunity to acquire the full knowledge of the facts and circumstances surrounding the case, without which it could not be intelligently tried or fairly decided, and that the affiant has discovered from the reporter's minutes of the trial that the main facts necessary to be established on the part of the plaintiff, in order to make applicable the legal points principally relied on, were not proved, nor was any evidence given thereon. The affidavit did not state what the facts were which were thus left unproved, nor the evidence by which they could have been proved. The motion was denied, the court holding, on consideration of the affidavit and the evidence given at the trial, that the real issue in the case was whether a certain land-contract was given in satisfaction of the mortgage, or merely as collateral security; that as both plaintiff and defendant testified to and fully disclosed the whole transaction between them, and Mr. Colburn, the only other person present when their agreement was made, also testified clearly in corroboration of the testimony of the defendant, and as the chattel mortgage was not satisfied nor any...