O'Donnell v. Segar
| Citation | 25 Mich. 367 |
| Parties | Timothy O'Donnell and another v. George Segar |
| Decision Date | 13 July 1872 |
| Court | Supreme Court of Michigan |
Heard April 20, 1872
Error to St. Clair Circuit.
Judgment reversed, with costs, and a new trial awarded.
A. E Chadwick and Trowbridge & Atkinson, for plaintiffs in error.
B. C Farrand and E. W. Meddaugh, for defendant in error.
Graves, J., did not sit in this case.
This was an action of replevin brought by Segar, the defendant in error, in the Circuit Court for the County of St. Clair for a yoke of oxen which had been seized by Spencer, a constable, under a writ of attachment issued by a justice of the peace, at the suit of O'Donnell against Segar and one Arthur Smith, April 6, 1870. Judgment was obtained in the attachment suit, and the oxen sold upon the execution issued in that suit. [The record does not show how Spencer and O'Donnell, obtained, or held the possession of the property after the sale so as to render them jointly liable to replevin, but no error is assigned upon this ground.] Spencer acted under the direction of O'Donnell in seizing and selling the property. The defendants justified under the attachment and execution, and the plaintiff (defendant in error) claimed that the oxen were exempt from attachment and sale, under subdivision 8, of § 4465, Comp. L. of 1857, which exempts from such attachment and sale, "the tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, trade, occupation or business, in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars."
A previous attachment had been obtained by O'Donnell against the same parties, on which the oxen were taken, and a previous replevin suit commenced by Segar, against the constable who took the oxen, and his assistant, upon which the oxen were not found or taken; and, though some errors are assigned in reference to the previous replevin suit, they were not insisted upon on the argument, and will not be noticed; nor shall we notice any of the errors assigned, except those urged upon the argument.
Segar having obtained the property on the writ of replevin in the present cause, recovered a judgment for damages and costs, and the case comes to this court upon a writ of error and bill of exceptions.
The particular subdivision of the statute under which the exemption was claimed by the plaintiff, makes the exemption depend upon the profession, trade, occupation or business, in which the party is wholly or principally engaged, and his need of the property in the exercise of that profession, trade, occupation or business; differing in this respect from most of the other subdivisions of the section, which relate to specific exemptions, some confined to householders, and some applicable to all persons alike. The question of exemption depends on the state of facts existing on the 6th of April, when the cattle were taken on the second attachment; but the plaintiff's evidence all related to the 28th of March, when they were taken on the first attachment. No objection seems to have been taken to this; and, as the difference in time was only nine days, it is not very material, unless it should be shown that the state of facts was essentially different at the last named period.
It was incumbent upon the plaintiff to show, 1st. That he owned or was entitled to the possession of the oxen; 2d. That he was engaged in some kind of business or employment which called for the use of a team, or yoke of oxen; and 3d. That he had no other team--or perhaps none which together with this would exceed in value two hundred and fifty dollars, or if they did that, he had taken the proper course to select these oxen, or that he had been wrongfully prevented from making such selection: See Comp. L., 1857, §§ 4466 to 4468.
Testimony was given on the part of the plaintiff, tending to establish each of these points. The testimony of George Bean, a witness for the plaintiff, on his direct examination, tended to establish the first two; but in reference to the plaintiff's occupation, his testimony was, that plaintiff was a farmer, and in winter a lumberman; but in what division or department of the lumbering business he had been engaged in the winter season--whether in cutting logs, running or sawing them, or in piling lumber, none of which required the use of a team, or in drawing it, which would require a team--did not appear.
The defendants had a clear right, on cross-examination of this witness, to put any question calculated, not only to test his credibility and the extent and means of his knowledge, but to draw out any fact which might tend either to contradict, weaken, or explain any one of the particular statements made by the witness, or to weaken any inference from the whole or any part of his testimony in chief, in support of either of the main facts essential to the plaintiff's case. And since, if a question on cross-examination relates to the subject to which the direct examination related (by which I mean not only the particular facts stated in the direct examination, but anything tending to establish the main or resultant facts essential to the plaintiff's case), the court can not usually say, before the question is answered, whether the answer will elicit anything tending to contradict, weaken, or explain any of the facts, or the inference from any of the facts, stated in the direct examination, or to test the credibility or the extent or means of knowledge of the witness, the only safe general rule upon cross-examination is, to allow the party cross-examining to go over the whole subject, or subjects, to which the direct examination related, and to give him the chance to draw out, as far as he may be able, any fact which within the principles and for the purposes above explained, he has the right to elicit on cross-examination. It is quite possible that questions may be put upon cross-examination, though relating to the subject of the direct examination, the answers to which, if responsive, the court may be able to see, could have no bearing, and serve no legitimate purpose, whichever way the answer might be; and then there would be no error in rejecting the question. But this can not often happen; and courts should be very cautious in overruling questions on cross-examination upon this ground, since it frequently happens that a cross-examination can be rendered effectual only by first calling out some fact apparently of little or no importance, and then making the answer the basis of other questions, or the test of other answers, which may finally result in exposing falsehood, or drawing out other facts which may greatly weaken or modify the effect of the testimony in chief. The witness, on his cross-examination, had already testified that Segar had formerly been a farmer near Memphis, which farm he sold out in order to pay for it; that he had lived in the house on the Partridge place about two months; that Partridge sold the place in May; that Segar worked on the witness's place (without saying when); that plaintiff held the cattle for sale at the time when taken by Smith and Dayton (meaning on the first attachment, in March), and that Segar bought the oxen in February.
He was then further asked, on the same cross-examination, the following questions, all of which were objected to by the plaintiff, and excluded by the court, viz.:
And the witness, having then proceeded to state that plaintiff's family went to Missouri about two months after the cattle were taken by Smith and Dayton (which would make the time about the 6th of June); that soon after plaintiff recovered the oxen (meaning on the writ in the present case), which was about the middle of August, and that he sold them to the witness, and soon after went to Missouri, he was then further asked: "Do you know whether plaintiff had any other team during the winter?" This, also, was overruled. Doubtless, a man having exempt property may sell it, and the mere fact that he offers it for sale will not deprive him of the exemption But if he buys it, and holds it, rather for sale or speculation than for the particular use which alone exempted it, and it is not, in fact, needed or kept for such use, it would not be exempt.
The first question overruled had some, though not a very direct bearing upon the question, for what purpose he had bought and held the oxen--whether for the purpose of speculation, or because he needed them in any occupation or business in which he was engaged, and the second, upon the question whether he was a farmer, which was a main fact in the case, as the evidence tending to show that he was a lumberman in the winter, did not, without explanation, show that he was, even in the winter, engaged in that kind of lumbering business which called for the use of a team. The answer to the third question, also, might have been very material, though it related to the ...
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