Dorr v. Mickley

• Decision Date: 01 January 1871
• Citation: 16 Minn. 8
• Parties: MICHAEL C. DORR v. MATHIAS MICKLEY, Sheriff, etc.
• Court: Minnesota Supreme Court

Page 8

16 Minn. 8

MICHAEL C. DORRv.

MATHIAS MICKLEY, Sheriff, etc.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Stearns county, granting a new trial.

The action was in replevin for two horses and two halters. The defendant was sheriff of Stearns county, and one Lauerman was his deputy. Lauerman, without any direction from defendant, took the property from plaintiff, at the request of one Branch, who held a chattel mortgage on it, for the purpose of foreclosing it. On the trial below defendant had a verdict. The district court granted a new trial.

Hamlin & Moore, for appellant.

Hays & Kerr, for respondent.

McMILLAN, J.

This is an action for the claim and delivery of certain personal property, which, it is alleged, the defendant wrongfully took and detains from the plaintiff, together with damages for such detention.

The cause was tried by a jury in the court below, and resulted in a verdict for the defendant. The court, on motion of the plaintiff, granted a new trial; and from the order granting such new trial the defendant appealed to this court.

It appears that, after the original pleadings were settled, the complaint was amended; and upon the trial an amendment was allowed to the answer, as follows: "That he took the halters, in said amended complaint mentioned, by and with the consent of said plaintiff; and the defendant denies that demand was made for said halters, as in said complaint is alleged, or otherwise;" and it was agreed between the attorneys of the respective parties that this should "be considered as a part of the original answer, and as incorporated therein, and the answer already served shall be considered as putting in issue the allegations, and each and every one of them, of the amended complaint, except as expressly admitted in original answer, and except as above stated."

On the argument of the cause in this court, Judge Hamlin, who argued the cause for the appellant, stated that, by the amendment to the answer above quoted, it was intended to allege the taking of the halters by Lauerman, not the defendant; and that the pronoun "he" refers to Lauerman, and was so understood by all parties on the trial. This would seem to harmonize entirely with the agreement that the amendment "shall be considered as a part of the original answer, and as incorporated therein." In view of the stipulation that the answer "shall be considered as putting in issue the allegations, and each and every one of them, in the complaint, except as admitted" in the answer, the determination of the plaintiff's motion to strike out certain portions of the answer would seem to be correct, even if, in the absence of the stipulation, it would be otherwise; which, however, we do not intend to intimate. We proceed, then, to consider the merits of the appeal.

If it is apparent to the appellate court, from the whole case, that a new trial would not change the result already arrived at in the case, notwithstanding error may have occurred in the course of the trial, a new trial will not be granted.

There seems to be no doubt whatever that the horses, which are the subject of this action, were taken from the plaintiff by...