Ferson v. Wilcox

• Decision Date: 01 January 1874
• Parties: JAMES S. FERSON v. JOHN D. WILCOX and others.
• Court: Minnesota Supreme Court

19 Minn. 388

JAMES S. FERSON

v. JOHN D. WILCOX and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Chisago county, denying a new trial.

Cornman & Lecky, for appellants.

James N. Castle, for respondent.

BERRY, J.

This action was brought to recover damages for the wrongful taking and conversion of two yoke of oxen and two sleds, property of the plaintiff. Trial was had by jury in the district court for Chisago county, resulting in a verdict for plaintiff for $335. Defendants moved for a new trial: (1) because the verdict is not justified by the evidence; (2) because of error in law occurring at the trial and excepted to. In support of the first ground defendants' counsel claims that there was no evidence connecting defendants with the wrong charged. This is a mistake. Defendants' answer, as it occurs to our minds, distinctly confesses their connection with the transactions complained of, and which form the subject of this action. In addition to this there was evidence in the case showing (if it were believed, which was a matter for the jury) that both defendants were present at and took part in the sale, which plaintiff claims to have been wrongful, and bid in some of the property. There was also evidence tending to show that defendant Wilcox assumed to control the sale to some extent, and that some of the property was carried away by defendant Liebow. We are at a loss, then, to see how it can be successfully contended that there was not such evidence in the case as would justify the court below in denying the motion, so far as the first ground is concerned.

In opening his case, plaintiff's counsel stated, among other things, that the taking complained of in this case was by one Curry, a constable, under an execution issued by defendant Wilcox, a justice of the peace, upon a judgment rendered by him in an action in which defendant Liebow was plaintiff and plaintiff Ferson was defendant, "and that said execution and all proceedings under it were void, for the reason that said defendant Wilcox had not filed his bond as justice in the office of the clerk of Chisago county, at the time said judgment was rendered." Defendants claim that this was an admission (as we understand their position) of a taking under an execution and judgment valid, except for the objection above mentioned; which objection, defendants further contend, is of no importance. Defendants also claim that the admission is of the nature...