Furman v. Tenny

• Citation: 28 Minn. 77
• Parties: LETTIE F. FURMAN <I>vs.</I> HENRY TENNY, impleaded, etc.
• Decision Date: 06 June 1881
• Court: Minnesota Supreme Court

28 Minn. 77

LETTIE F. FURMAN vs. HENRY TENNY, impleaded, etc.

Supreme Court of Minnesota.

June 6, 1881.

Appeal by defendant Tenny from an order of the district court for Blue Earth county, Dickinson, J., presiding, denying his motion for judgment on the special findings of the jury, and refusing a new trial.

P. A. Foster, for appellant.

D. Buck and Freeman & Pfau, for respondent.

CLARK, J.

This was an action of replevin for a horse, brought before a justice of the peace, against the defendant Cornelius T. Furman, the plaintiff's husband. The defendant Tenny was, on his own application, admitted to defend, and he set up in his answer that, as constable, he seized the horse on an execution against Mr. Furman, and turned it over to him again to be kept till sold, he receipting therefor, and that Mr. Furman was the owner thereof at the time of the seizure, and not the plaintiff. The case was tried, on appeal to the district court, by a jury, upon the issues between these parties. The statement of the case shows that testimony was introduced tending to show a gift of the horse by the defendant Furman to the plaintiff before their marriage, and that Mr. Furman was indebted, at the time of such gift, to the execution creditors and others.

The jury found a general verdict for the plaintiff, and the following special matters, viz.: "Was there any delivery of the possession of the property by C. T. Furman to his wife, at the time of the alleged gift?" Answer. "Yes." "At the time of such alleged gift was the donor in debt?" Answer. "Yes." Had the donor property amply sufficient, aside from the property in question, to satisfy such indebtedness as is shown in this case?" Answer. "No." Also the following special finding, delivered orally by consent of parties and entered of record, viz.: "We find that the said property was exempt from execution at the time of the alleged gift, and this is the ground upon which we find for the plaintiff." The defendant moved for judgment on the special findings, notwithstanding the general verdict, and, in case of the denial of that motion, for a new trial, which motions were both denied, and an appeal was taken to this court from the order denying the same.

Three grounds of error are urged here: (1) That such exemption from execution cannot avail the plaintiff, because it was not pleaded; (2) that the transfer by gift was void as against the creditors of the donor, notwithstanding such exemption; (3) that testimony of the plaintiff and her sister, to the effect that Mr. Furman was accustomed to speak of the horse as the property of his wife, was improperly admitted.

With reference to the first, it was not necessary, as claimed by defendant's counsel, for the plaintiff to plead specially in her complaint...