Brownell v. McCormick
| Citation | 14 P. 651,7 Mont. 12 |
| Parties | BROWNELL v. McCORMICK. |
| Decision Date | 18 July 1887 |
| Court | Montana Supreme Court |
Appeal from district court, Meagher county.
J. H Shober, J. W. Kinsley, and Sanders, Cullen & Sanders, for appellant.
Wade Toole & Wallace, for respondent.
The transcript in this case is not prepared in accordance with the requirements of the rule. See Rules S.Ct. No. 4. We would therefore be warranted in refusing to consider it. The errors of law are, however, so apparent that the consideration of doing substantial justice prevails upon us to overlook this defect in this case. But, as we have had occasion to call attention to the disregard of this rule upon a former occasion, we may never again be so indulgent. Alder Gulch Con. Min. Co. v. Hayes, 6 Mont. 31, 9 P. 581.
This is an appeal from an order overruling a motion to set aside the verdict and judgment. The action was one of claim and delivery, brought to recover the possession of certain horses, or their value. It appears from the record that the defendant, as the acting constable of Diamond township Meagher county, seized the above property, by virtue of certain writs of attachment, issued out of the justice's court of said township, in several separate actions, against the firm of Dalton & Radbourn, as the property of Dalton & Radbourn.
The firm of Dalton & Radbourn had leased of one Cheney Moulton certain ranches and horses in the county of Meagher, and among the animals so owned by Moulton, and leased to them, were the two mares mentioned in plaintiff's complaint. On February 5, 1885, Mr. Moulton sold his Montana ranches and stock to the plaintiff in this case, and executed a bill of sale therefor, and thereafter that firm continued to hold the same under their lease, but as tenants of plaintiff. The three stallions mentioned in the complaint were purchased by the plaintiff, April 25, 1886, at Bloomington, Illinois, of one George W. Stubblefield, and were shipped out to Montana immediately, and placed in possession of Messrs. Dalton & Radbourn, on plaintiff's ranch, with authority to sell them for plaintiff if they had an opportunity to do so. All of the property remained in the possession of Dalton & Radbourn, as lessees of plaintiff, up to about the first day of August, 1886; at which time the plaintiff, having previously given the notice mentioned in the lease, terminated the same, and took possession himself of all his property. On the seventh day of August following, the defendant, as constable, seized the horses mentioned in the complaint, under his writs of attachment against Dalton & Radbourn, and took them out of the possession of the plaintiff. The defendant, in justification, pleads his writs of attachment and executions subsequently issued in the cases, and levied upon the property in question. He also pleads specially that there was no delivery of the property under any sale made to the plaintiff; that plaintiff's claim to the property was founded on a transfer fraudulently made to hinder, delay, and defraud the creditors of Dalton & Radbourn. The defendant also pleads, by way of estoppel, that plaintiff knowingly permitted Dalton & Radbourn to hold, possess, and use said property as their own, and that the credit obtained by them was extended in good faith, upon the belief, upon the part of their creditors, that it was their property, and that the attaching creditors would not have extended said credit but for the asserted ownership of said property by Dalton & Radbourn, with the knowledge and consent of plaintiff. Plaintiff replied, taking issue on all new matter set up in the answer. The cause was tried to a jury, and, a verdict having been found in favor of defendant, judgment was entered in his favor, and against the plaintiff, for costs. Only one of the parties filed a brief in this case, who was the appellant.
Upon an examination of the...
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