Gavigan v. Scott
| Decision Date | 10 October 1883 |
| Citation | 16 N.W. 769,51 Mich. 373 |
| Court | Michigan Supreme Court |
| Parties | GAVIGAN v. SCOTT. |
A wife replevied, as her own, property that had been seized on execution against her husband, and on the trial called her husband to show that it belonged to her. Held proper to cross-examine him as to his own use of the property, and of its proceeds, and also as to his business, what he did with his earnings, and where his wife got her money to pay for the property in suit.
In replevin by a wife for property claimed by her, but seized on execution against her husband, there was evidence that the husband had given a chattel mortgage on it; but, being called as a witness for his wife, he testified that he did not remember doing so. Held proper to put the mortgage in evidence.
Where defendant in replevin justifies under a writ of execution the record of the judgment and proceedings on which it issued are receivable in evidence.
Defendant's counsel has a right to comment to the jury upon the plaintiff's omission to produce important witnesses who are within reach.
The mere fact that a husband has given a chattel mortgage on his wife's property does not tend to show that he owned it if there is no evidence of his wife's consent or knowledge therein, or that it was given for her.
Error to Alpena.
J.D. Turnbull, for plaintiff and appellant.
J.B Clayberg, for defendant.
The plaintiff in this case is the wife of John Gavigan, against whom the defendant, as sheriff of Alpena county, held an execution in 1882 for service, requiring him to collect thereon about the sum of $400, and which the defendant levied upon a threshing-machine and horse-power as the property of the defendant, and took the same into his possession for the purpose of making sale thereof under the execution. Thereupon the plaintiff laid claim to said property as hers, and demanded possession thereof. Defendant refused to give it up and plaintiff brought her suit in replevin therefor. The defendant had judgment at the circuit court, and the plaintiff brings error.
It is in evidence, and not controverted, that the plaintiff ever since her marriage, which was in 1869, has carried on various kinds of business; that what property her husband had when married he gave to her, and that she has always carried on the business, done it in her own name,--her husband, whenever doing any of the business, acting as her agent; that at the time the transaction occurred out of which this suit arose, she was keeping hotel,--her husband worked and made purchases for her when necessary in carrying on the business, acting as her agent; that the real estate they occupied was owned by her and she held the title thereto; that the plaintiff's husband made the purchase of the threshing-machine at Battle Creek, she claiming that it was for her, and that she signed the notes given for the purchase money, and obtained one Albert Pack to indorse the notes with her; that she ran the hotel and had her husband run the threshing-machine; that she had the benefit of her husband's labor in carrying on her business and acquiring property, and in all her dealings with others the accounts on both sides were kept in her name, and that defendant was informed at the time he made the levy that plaintiff owned the property.
It was claimed by the defendant's counsel that the judgment sought to be collected, and upon which said execution issued was rendered in an action of...
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