Granning v. Swenson
| Decision Date | 27 April 1892 |
| Citation | 52 N.W. 30,49 Minn. 381 |
| Parties | Mathea Granning v. Peter P. Swenson |
| Court | Minnesota Supreme Court |
April 11, 1892, Submitted on Briefs
Appeal by defendant, Peter P. Swenson, Sheriff, from an order of the District Court of Hennepin County, Lochren, J., made June 27 1891, denying his motion for a new trial.
Action by Mathea Granning, plaintiff, to recover damages for taking by defendant, as Sheriff of Hennepin County, of a quantity of lumber of the value of $ 400, which she claimed belonged to her. The defendant answered that he was Sheriff, and had a writ of execution against Brown M. Granning, her husband that the lumber belonged to, and was in the possession of the husband; and that defendant took it under the writ. The action was brought to trial May 25, 1891.
Before commencing the action, plaintiff served on the Sheriff notice that the lumber did not belong to her husband, and demanded that defendant leave it in her possession, but made no affidavit of her title thereto or of her right to its possession or its value. When seized by the Sheriff, the lumber was lying on a lot of which she had possession under a contract of purchase. When the evidence was all given defendant requested the court to instruct the jury to return a verdict for the defendant, on the ground that no such affidavit had been served on the Sheriff. The court refused, and the defendant excepted.
On the trial, defendant offered to show by the witness Borreson that, in a conversation witness had with plaintiff's husband, he stated to the witness that he was erecting the house upon this lot on which this lumber was to be used, and was going to get a loan on it and go back to the old country. Plaintiff objected to the evidence as incompetent, and the court sustained the objection. The defendant excepted to the ruling, and in this court made this his seventh assignment of error. While testifying, the husband had been asked if he knew Borreson. He replied that he knew the "gentleman sitting there with glasses," but his name was not Borreson; that he had some conversation with that gentleman, but not about the lot or who owned it, nor had he stated to that gentleman that he was going to erect a building there, or borrow money on it, or go back to Europe. The jury returned a verdict for the plaintiff for the value of the lumber.
On June 27, 1891, defendant made a motion for a new trial, on the ground of newly-discovered evidence and for errors in law occurring at the trial and excepted to by defendant, and that the verdict was not justified by the evidence.
The newly-discovered evidence was, that the husband told Lacy, who sold the lumber to plaintiff, that he (the husband) could not build the house in his own name, as there were judgments against him; that he would turn over to Lacy any judgment his wife should recover in this action; that he owned the lot, but had to put the title in the name of his wife to keep it so that creditors could not get it.
As this was not evidence in chief, and was material only to discredit the evidence of the husband, the trial court regarded it insufficient to support the application on that ground.
Order affirmed.
Willis A. McDowell, for appellant.
1878 G S. ch. 66, § 154, provides, as a condition precedent to maintaining an action against a sheriff, that a demand supported by affidavit should be first made. This provision applies only where property is found in the possession of the defendant in the execution. The title to the lot upon which the house was being erected was in a Mrs. Walker. On October 25, 1890, the plaintiff entered into a contract with her to purchase it, which contract remained in the hands of Thorpe Bros., the agents of Mrs. Walker. Plaintiff did not in fact have possession of the lot, or of the material in question, at any time, and this demand and affidavit were necessary. Barry v. McGrade, 14 Minn. 163, (Gil. 126.)
The memorandum of the items made by the witness at or near the time of the transaction should have been received in evidence, and should have gone to the jury for the purpose of refreshing their recollection as to what the testimony was; it is asking too much to expect the jurymen to recollect and carry in their minds all the items of such a bill. Tuttle v. Robinson, 33 N.H. 104; Webster v. Clark, 30 N.H. 245.
A new trial should have been granted for newly-discovered evidence. Had the defendant had the benefit of the testimony of Lacy as set out in the affidavits, the jury would have given a different verdict in this matter.
Gjertsen & Rand, for respondent.
The property levied upon was in the possession of the plaintiff. She had purchased the real estate and entered into a contract for a deed. She had purchased the lumber from Lacy & Co., in her own name and upon her own credit. Henry Olsen was her foreman, and had charge of the building. Jones v. Town, 26 Minn. 172; Tyler v. Hanscom, 28 Minn. 1; Ohlson v. Manderfeld, Id. 390.
A memorandum made by an expert witness in the examination...
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