Doane v. Glenn

Decision Date01 February 1872
Citation1 Colo. 495
PartiesDOANE et al. v. GLENN et al.
CourtColorado Supreme Court

Error to District Court, Arapahoe County.

THE sheriff's return to the writ of attachment was as follows: 'I have duly executed this writ by leving on seven hundred and fifty-five head of Texas cattle, branded seventy-one. Six horses or two mares and four geldings, one saddle, one bridle, one heavy wagon, one sorrel mare branded Z O, connected on right shoulder, one sorrel mare branded OX on left hip, M S on shoulder, one sorrel horse branded LL on shoulder, one bay horse branded H on shoulder, one black poney branded HS on shoulder, one black poney branded B on shoulder, as I am therein commanded, and have the said property now in my possession. The within-named Oliver S. Glenn and Rufus E. Talpey are not found in my county.'

The claimants described the property in their plea as follows 'Seven hundred and fifty-five head of Texas cattle branded '71,' one sorrel mare branded Z O, connected on right shoulder, one sorrel mare branded OX on left hip one sorrel horse branded LL on shoulder, one bay horse branded H on shoulder, one black poney branded HS on shoulder, one black poney branded B on shoulder, one saddle one bridle, one heavy wagon.'

The judgment of the court was as follows: 'It is considered by the court that the property taken by virtue of the writ of attachment in this cause be delivered up to the said Lockhart T. Glenn and George O. Talpey, and that a writ of retorno habendo be awarded and issued there for.'

In addition there was judgment for costs.

The evidence is sufficiently stated in the opinion of the court.

The first instruction to the jury is given in the opinion of the court; the second and third instructions were as follows:

If the interpleading claimants purchased the stock which is in controversy with the funds of the defendants, or held the same for the use of the defendants, then such purchase and holding was a fraud upon the creditors of the defendants, and the property in question was subject to the levy of the plaintiff's writ of attachment.

Such fraud as supposed in the last instruction is not to be presumed or inferred without proofs, and it is for the jury to say, upon all of the facts and circumstances in proof, whether the possession of the interpleading claimants was an honest one or merely colorable and fraudulent.

Messrs. CHARLES & ELBERT, for plaintiffs in error.

Messrs. FRANCE & ROGERS, for defendants in error.

BELFORD J.

Plaintiffs in error commenced suit by attachment in the district court of the county of Weld, on the 22d day of September, 1870, against Oliver S. Glenn and Rufus E. Talpey, for the sum of $7,000. A writ of attachment was issued, directed to the sheriff of said county, which was, on the 23d day of September, 1870, levied on the following described property, to wit: seven hundred and fifty-five head of Texas cattle, six horses, one saddle and bridle, and one heavy wagon. At the following December term of the district court defendants in error filed in said suit their plea, claiming that they were the absolute owners of, and entitled to, the immediate possession of the property above set forth. To this plea a replication was filed by the attachment plaintiffs, denying that the property levied on by the writ of attachment, and described in said plea, was the property of said interpleaders, or that they were entitled to the possession of the same. Issue being joined, by stipulation of the parties, the cause was brought to Arapahoe county for trial. The jury returned a verdict for the defendants in error, on which judgment was rendered for return of the property attached. On the trial below, the interpleading claimants, to support the issue on their side, introduced as a witness one Thomas E. Benson, who testified that, as deputy sheriff, he had levied the writ of attachment; 'that at the time of the levy he found the property in the possession of George Glenn and Dr. Talpey. These young men were in possession of the cattle. They had some herders with them. One colored person driving a team, and one other man on horseback. Did not know that they, the interpleaders, were in possession more than the other men who were there, except from what they told him. Saw them there with the cattle, so were the other men as much as they.' The plaintiffs moved to exclude this testimony, on the ground that Benson's knowledge of the possession was derived from the declarations of the claimants and, therefore, hearsay and inadmissible. This motion was denied by the court, and this constitutes the first assignment of error, which we will notice. The declarations made by the claimants of Benson do not appear in the record, and hence, we are unable to judge of their character and force.

It is a settled rule, that the best evidence that the nature of the case will admit of must be adduced unless some obstacle lies in the way which legally authorizes a resort to inferior evidence. The highest degree of certainty of which the mind is capable, with respect to the existence of a particular fact, consists in a knowledge of the fact, derived from actual perception of the fact by the senses. It is seldom, however, that a jury can act upon knowledge of this description; it rarely happens that a fact which can be decided by mere inspection is submitted to the consideration of the jury. The second degree of evidence in the scale of certainty consists of information derived from the relation and information of those who have had the means of obtaining actual knowledge of the fact, from actual perception of the same by the senses; and upon knowledge thus derived juries must in general act. The jury must be informed of the facts by those who are eye and ear witnesses of them. The third degree of evidence in the scale of certainty consists of information derived, not immediately from one who has had actual knowledge of the fact by the perception of his senses, but from one who knows it only by its having been asserted by some other person; this is generally hearsay evidence. And, although there is a rule which excludes hearsay evidence, yet there are numerous exceptions to it, which courts are bound to recognize and enforce, and among the exceptions thus recognized is, that when a declaration is in itself a fact, and is part of the res gesta, the objection to hearsay evidence ceases.

The distinction between a mere recital, which is not evidence, and a declaration which is to be considered as a fact in the transaction, and therefore evidence, frequently occasions much discussion. The rule is this: if the declaration has a tending to illustrate the question, and any importance can be attached to it as a circumstance, which is part of the transaction itself, and deriving a degree of credit from its connection with the circumstances, independently of any credit to be attached to the speaker, then it is admissible. The objection of hearsay evidence can never operate to the exclusion of any statement of a fact which the law regards as a proper and safe medium for conveying the truth to a jury; for, in such case the evidence is admissible, because it is in itself and in connection with the circumstances deserving of credit, and it is no more hearsay evidence than the fact itself. Such evidence does not rest upon the credit due to the person who makes the statement, but it is, in general, good, although the person who made it would not, in ordinary cases, be believed upon oath. It is admitted as a part of the transaction, on the presumption that it is calculated to elucidate the facts with which it is connected, and it is evidence, although the party who made it is himself a competent witness. Ingram v. Plasket, 3 Blackf. 454. In treating of this subject CLIFFORD, J. (Insurance Co. v. Mosley, 8 Wal. 412), says: 'Undoubtedly whenever evidence of an act done by a party is admissible, the declarations he made at the time the act was done are also admissible, if they were of a character to elucidate and unfold the act, because they derive a degree of credit from the act itself and do not rest entirely upon a statement not made under oath. But such declarations cannot properly be received as evidence, unless the principal act which they accompany and to which they relate is itself material to the issue to be submitted to the jury, nor unless the declarations were made at the time the principal act was done,' etc. The record shows that, at the time of the levy of the writ of attachment, these claimants were with the cattle. This is a distinct fact in itself and a fact which was ascertained by Benson by actual perception, a fact which he could and did testify to, so that we find something to which the declarations can attach, and from which they derive a legal support. The latter would be clearly inadmissible were they disconnected from the act of levy. If made at any other time they could not be received, and their admissibility is only secured by reason of their forming a part of the transaction, of the levy, or what occurred at that time.

In Nilson v. Iverson, 19 Ala. 95, the declaration of a party, while in the possession of a slave, 'that she was his negro and that he intended to keep her,' was held admissible as part of the res gestoe to prove the character of his possession. And in Nilson v. Iverson, 17 Ala. 216, the court holds that the declarations of a party in possession are admissible as a part of the res gestoe to prove the character of his possession, as that he claims the property as his own, or holds it in subordination to the claims of another. 1 Halstead's Ev. 424, 426.

The material issue to be tried in this case was, the possession and ownership of the property at the date of the levy. The...

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10 cases
  • Rojas v. People
    • United States
    • Colorado Supreme Court
    • February 22, 2022
    ...Co., 15 U.S. (2 Wheat.) 380, 383, 4 L.Ed. 266 (1817), and Colorado courts have recognized it since at least the 1870s, see Doane v. Glenn, 1 Colo. 495, 499-501 (1872), rev'd on other grounds by Doane v. Glenn, 88 U.S. (21 Wall.) 33, 22 L.Ed. 476 (1874). The Latin phrase, which means "things......
  • Rojas v. People
    • United States
    • Colorado Supreme Court
    • February 21, 2022
    ...Leeds v. Marine Ins. Co., 15 U.S. 380, 383 (1817), and Colorado courts have recognized it since at least the 1870s, see Doane v. Glenn, 1 Colo. 495, 499-501 (1872), rev'd on other grounds by Doane v. Glenn, U.S. 33 (1874). The Latin phrase, which means "things done," Res Gestae, Black's Law......
  • Gibson v. Foster
    • United States
    • Colorado Court of Appeals
    • September 15, 1913
    ... ... proposition, this is true, as indicated in the decisions from ... Franklin v. Talmadge, 5 Johns. (N.Y.) 84, to Doane v. Glenn, ... 1 Colo. 495, 502, and Webster v. Heginbotham, 23 Colo.App ... 229, 238, 129 P. 569 ... This is ... especially true where ... ...
  • Tibbetts v. Terrill
    • United States
    • Colorado Supreme Court
    • July 6, 1908
    ... ... another or holds such property for the use of another, it is ... a fraud upon the creditors of such other party. Doane v ... Glenn, 1 Colo. 495 ... But the ... defendant Alley says that the plaintiff ought not to maintain ... this action, because there ... ...
  • Request a trial to view additional results
1 books & journal articles
  • The Expanding Use of the Res Gestae Doctrine
    • United States
    • Colorado Bar Association Colorado Lawyer No. 38-6, June 2009
    • Invalid date
    ...539 (1873); C.R.E. 106; F.R.E. 106. 11. U.S. v. Gaussen, 86 U.S. 198, 213 (1873); C.R.E. 801(d)(2); F.R.E. 801(d)(2). 12. Doane v. Glenn, 1 Colo. 495, 499 (1872), rev'd on other grounds 88 U.S. 33 (1874). 13. Solander v. Doane, 2 Colo. 48, 63 (1873); C.R.E. 801(d)(2)(E). 14. Jones v. People......

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