Gallup v. Fox

• Decision Date: 09 July 1894
• Citation: 64 Conn. 491,30 A. 756
• Court: Connecticut Supreme Court
• Parties: GALLUP v. FOX.

30 A. 756

64 Conn. 491

GALLUP

v. FOX.

Supreme Court of Errors of Connecticut.

July 9, 1894.

Appeal from court of common pleas, New London county; Crump, Judge.

Action of trover by Loren A. Gallup, as trustee in insolvency of Almon Bartlett, against Albert N. Fox, to recover the value of a certain horse, wagon, and harness, formerly the property of said Bartlett. From a judgment for defendant, plaintiff appeals. Reversed.

Donald G. Perkins, for appellant.

Solomon Lucas and Charles W. Comstock, for appellee.

ANDREWS, C. J. This was a complaint in the nature of an action of trover, brought to the court of common pleas in New London county by the plaintiff, describing himself to be the trustee in insolvency on the estate of one Almon Bartlett, and claiming to recover the value of a horse, wagon, and harness which had belonged to said Bartlett There were two defenses,—the general issue, and a denial that the plaintiff was at the time the suit was commenced, or ever since had been, the trustee of the said in solvent estate, and had, as such, no right to bring or maintain this action. The case was tried to the jury, and the defendant had a verdict.

To prove his appointment as trustee, the plaintiff laid in the record of the court of probate in the district of Montville, where the said Bartlett resided, and claimed that it appeared thereon that said Bartlett had been by that court decreed to be an insolvent debtor, and that he, the plaintiff, had been appointed the trustee of his estate, and that he had come into said court, accepted the trust, and given bond for the faithful performance of his duty. This record showed that there had been some amendments made in it, and the defendant objected to its admission in evidence, but the court admitted it, and it was read to the jury. Under the general issue the defendant offered evidence, and claimed to have proved, that he purchased said personal property bona fide of the said Bartlett, through one Penharlow, his agent, before the proceedings in the court of probate were commenced upon which the said decree of insolvency was made and the plaintiff appointed trustee, and in payment therefor surrendered a note which he held against the said Bartlett; and also evidence to show that the plaintiff had, subsequent to his said appointment, ratified said sale by Penharlow to him, the defendant. The main fact, and substantially the only one upon which this claim was made, was that the plaintiff had not returned to the defendant the note of said Bartlett. In the instructions to the jury upon each of these points we think the trial court erred. In respect to the record of the court of probate the jury was Instructed as follows: "In the case at bar, Justice Gallup testifies that the amendments to the record were made in accordance with the facts actually found. So if you shall find that upon the records of July 30th and March 17th, amended as they are, it appears that Almon F. Bartlett was decreed to be an insolvent, and that Loren A. Gallup was appointed trustee of his insolvent estate; and further, by the records of said court in said case, that he gave bonds, and duly qualified as trustee,—you have nothing further to consider about the legality of his appointment. If these records disclose that he was appointed such trustee, he was entitled to the custody of Bartlett's estate for the purpose of distributing it among his creditors in accordance with the intention of the statutes, and so far qualified to maintain this suit." The record of the Montville court of probate is set out at length in the record before us, and it appears therefrom by an inspection that the plaintiff had been appointed trustee on the insolvent estate of said Bartlett. It is true that the record of a court of probate or of any other inferior court is only prima facie evidence of jurisdictional facts;...