France v. First Nat. Bank of Omaha

• Decision Date: 11 June 1888
• Citation: 18 P. 748,3 Wyo. 187
• Parties: FRANCE v. FIRST NAT. BANK OF OMAHA
• Court: Wyoming Supreme Court

18 P. 748

3 Wyo. 187

FRANCE v. FIRST NAT. BANK OF OMAHA

Supreme Court of Wyoming

June 11, 1888

Error to district court.

Replevin by James France against the sheriff of Carbon county to recover possession of property; the First National Bank of Omaha being substituted as defendant. Verdict and judgment for defendant, from which plaintiff appealed. Affirmed.

Rev St. Wyo. § 2407, provides that, in an action against an officer for the recovery of property taken under execution the court may, upon application of the defendant and the party in whose favor the execution issues, permit the latter to be substituted as defendant.

Judgment affirmed.

MAGINNIS C. J. CORN and SAUFLEY, JJ., concur.

OPINION

MAGINNIS, C. J.

Several questions are presented to this court for decision in this case, but two alone will dispose of it. The motion for a new trial in the court below presents two questions to that court, and those two are here for review. The action was one of replevin, in which plaintiff in error replevied certain live stock from the sheriff of Carbon county, who was holding the same under an execution issued against one Barton T. Ryan, issued upon a judgment rendered against said Ryan, and in favor of the defendant in error. Plaintiff in error claimed the possession of said property by virtue of a bill of sale and a contemporaneous written agreement. Defendant in error was substituted to defend in the court below for the original defendant, the sheriff of Carbon county. The court below found for the defendant.

It is contended here that the evidence does not show that the bill of sale and contemporaneous agreement were fraudulent, and that thereupon the evidence was not sufficient to support the finding. The bill of exceptions is very imperfect, in that it does not only not set out that it contains all the evidence produced in the court below, but discloses upon its face that it does not contain all the evidence. It is well settled that, in order to justify this court in passing upon the sufficiency of the evidence in the court below, all the evidence adduced must be before it. But had all the other evidence appeared, in this case the bill of exceptions does not even show any title in plaintiff in error. His title, if he had any, was dependent upon a certain bill of sale, and such bill of sale is nowhere set out in the bill of exceptions. It is true a paper purporting to be a copy of a bill...