Gallick v. Bordeaux

• Citation: 78 P. 583,31 Mont. 328
• Parties: GALLICK v. BORDEAUX et al.
• Decision Date: 28 November 1904
• Court: United States State Supreme Court of Montana

78 P. 583

31 Mont. 328

GALLICK v. BORDEAUX et al.

Supreme Court of Montana

November 28, 1904

Appeal from District Court, Silver Bow County; Wm. Clancy, Judge.

Action by Emanuel Gallick against Thomas J. Bordeaux and others. From a judgment for plaintiff and from an order denying a new trial, defendants appeal. Reversed.

For former opinion, see 56 P. 961.

C. P Drennen, for appellants.

Jno. J McHalton, for respondent.

HOLLOWAY J.

This is an action in claim and delivery, brought by Emanuel Gallick against Thomas J. Bordeaux, a constable of Silver Bow county and John R. Bordeaux and A. H. Barrett, the sureties on the official bond of such constable. The complaint alleges that on May 15, 1895, the plaintiff was the owner and entitled to the possession of a certain stock of goods consisting of wines, liquors, cigars, tobaccos, etc., contained in a certain saloon in Butte; that on that day the defendant Thomas J. Bordeaux, a constable, unlawfully seized and took possession of the goods above mentioned under a writ of execution issued from a justice of the peace court in an action wherein one Cooney had obtained a judgment against one Bordoni; that the constable seized the goods above mentioned as the goods of Bordoni, and not otherwise. The value of the goods seized is alleged to have been $868.02, and the prayer of the complaint is for the return of the goods, or for $868.02, their value, and for $1,000 damages for their wrongful seizure and detention. The complaint also contains this averment: "Plaintiff further alleges that the taking and detention of the said goods and chattels hereinabove mentioned by the said defendant Thomas J. Bordeaux was a breach of his official duty, and also a breach of his official bond." The answer denies the ownership or right of possession of the plaintiff, Gallick; denies the value of the goods to have been $868.02, or any greater amount than $176; admits the taking of the goods by the defendant Thomas J. Bordeaux, but alleges that the goods were the property of F. A. Bordoni, the judgment debtor mentioned; alleges the recovery of the judgment upon which execution was issued, the issuance of execution and seizure of the property thereunder; and alleges that at the time of said seizure Bordoni was in actual possession of the goods. The reply denies that Bordoni was in possession of the goods, except as the agent and employé of plaintiff, and denies the rendition of the judgment in Cooney against Bordoni. The cause was tried to a jury, which returned a verdict in favor of the plaintiff for the return of the goods, or for the sum of $400, their value. A judgment in accordance with this verdict was rendered, from which judgment and an order denying a motion for a new trial the defendants appealed.

Upon the trial evidence was offered on behalf of the plaintiff which tended to show that on or about the 2d day of May, 1895, the plaintiff had purchased the goods in controversy from Bordoni; that plaintiff had taken immediate possession, had placed a sign over the front door, "E. Gallick, Proprietor," and also a like sign in a show case inside the building; that he caused an inventory to be taken of the property, and had then employed Bordoni as his agent to conduct the business for him. The inventory of the property showed that it was of the value of $868.02. On behalf of the defendants evidence was introduced which tended to show that no transfer from Bordoni to Gallick had been made, or, if made at all, that it was not bona fide, but made for the purpose of protecting Bordoni. The evidence further tended to show that Bordoni had been in the active management of the business, had employed a bartender, and had purchased goods for the place subsequent to the 2d day of May, the date of the alleged sale. It was also sought to be shown that the stock of goods was of the value of about $176. This cause was heretofore before this court in Gallick v. Bordeaux, 22 Mont. 470, 56 P. 961. On the trial the court, at the instance of the plaintiff, gave to the jury a number of instructions, to which objections are here made.

1. Instructions 4 and 6. The opening sentence of instruction No. 4 is as follows: "The jury are further instructed that the fact that the said Bordoni was in the employ of the plaintiff, and in the saloon at the time this property in controversy was seized by the defendant," etc. Instruction No. 6 contains this expression: "The fact that the said plaintiff employed the said Bordoni as an employé about said place and placed him in charge thereof of itself raises no presumption of bad faith on the part of said plaintiff." In each of these instructions the existence of a particular fact is assumed, viz., that the plaintiff had employed Bordoni in and about the place where the property in controversy was found by the constable when he seized it. This assumption made by the court, under the record here presented, was equivalent to telling the jury that Bordoni had sold this property to the plaintiff, and that plaintiff had employed him to care for it. These were facts in dispute. Evidence was offered by defendants to show that Bordoni had never sold the property at all, but was the owner himself at the time of the seizure, and therefore his work in the saloon was work done for himself, and not as the employé of plaintiff or any one else. It is the duty of the court to instruct the jury with reference to all matters of law which the court may deem necessary for the formation and rendition of a verdict. Section 1080, Code Civ. Proc., as amended by act of the Fifth Legislative Assembly approved March 1, 1897 (Laws 1897, p. 241). The jury are the judges of the effect or value of the evidence. Section 3390, Code Civ. Proc. In other words, the facts are to be found by the jury from the evidence, and it is error for the court in its charge to assume as proven a fact which is in issue. Palmer v. McMaster, 10 Mont. 390, 25 P. 1056; Harrington v. B. & B. M. Co., 19 Mont. 411, 48 P. 758; Collier v. Fitzpatrick, 19 Mont. 562, 48 P. 1103; B. & B. Co. v. Lexington, 23 Mont. 177, 58 P. 111, 75 Am. St. Rep. 505; Lawrence v. Westlake 28 Mont. 503, 73 P. 119.

2. Instructions 3 and 13. By instruction No. 3 the court told the jury "that, before an officer can justify under an execution issued out of a justice court, it must appear that the justice court issuing said execution had jurisdiction of the parties and the subject-matter; that the judgment was legally and regularly made and entered; and that the execution was in due and legal form." Instruction No. 13 is as follows: "The jury are further instructed that the defendant Thomas J. Bordeaux occupies in this case the position of one who claims the property not as owner, but by virtue of a special interest therein as an officer under his writ, and for the purpose indicated therein; that it is only by reason of his special interest as such officer acting under a writ that he can be permitted to contest the right of the plaintiff. So far as the defendant officer is concerned, except for his writ and the rights acquired by his seizure thereunder, he has no right or authority to question the arrangement between the plaintiff and Bordoni, and the same is valid and binding as to all persons whatsoever except as to an officer acting under and by virtue of a valid writ. If, therefore, the jury believe from the evidence that the said defendant Bordeaux was not acting under a valid writ of execution, or that the court issuing the same had no jurisdiction to issue the writ, or that the said officer abused the process of the court, after seizing the said goods, by permitting the same to be wasted or destroyed, then in either of these events the said writ furnished the officer is no justification for the seizure, and your verdict should be for the plaintiff." In instruction No. 3, above, the court told the jury that it must appear that the justice issuing the execution had jurisdiction of the parties to the action and of the subject-matter, that the judgment was legally and regularly made and entered, and that the execution was in due and legal form. The reading of this at once suggests the inquiry, to whom must it be made to appear? To the jury? It is hardly conceivable that such questions would be submitted to a jury. But when instruction No. 13, above, is read in connection with this, it is quite apparent that the inquires contained in instruction No. 3 were directed to the jury, for in No. 13 the question of the validity of the execution under which the defendant Bordeaux assumed to seize and hold this property, as well as the question of the jurisdiction of the court issuing the writ, are directly submitted for determination to the jury. The three questions above submitted in instruction No. 3 and the two suggested above in No. 13 are questions of law, with which the jury did not and could not have had anything whatever to do. They are questions which the court should have determined, and, if determined adversely to defendant, an instruction plainly telling the jury that the defense sought to be made had failed should have been given. The jury ought not to have submitted to it questions respecting which it knew nothing. and which were entirely without its province to determined. It is the province of the court to tell the jury what the law of the particular case is, not to ask the opinion or advice of the jury respecting it.

3. Instruction No. 8. "The jury are further instructed that the defendant Thomas J. Bordeaux attacks the sale to the plaintiff upon the ground that it was made with intent to delay or defraud the creditors of said Bordoni in the collection of their debts, and particularly one J. H. Cooney. The jury are instructed that this is an affirmative defense,...