Griswold v. Boley

• Decision Date: 31 August 1872
• Citation: 1 Mont. 545
• Parties: GRISWOLD, respondent, v. BOLEY et al., appellants.
• Court: Montana Supreme Court

1 Mont. 545

GRISWOLD, respondent,

v.BOLEY et al., appellants.

Supreme Court of the Territory of Montana.

August Term, 1872.

Appeal from the First District, Jefferson County.

THIS action was tried in November, 1870, in the district court, SYMES, J., by a jury that found for Griswold. In October 1871, the court, MURPHY, J., overruled the motion for a new trial, and Boley appealed. The facts appear in the opinion.

E. W. TOOLE and J. J. WILLIAMS, for appellants.

No special damages are claimed in the complaint. Boley, as sheriff, levied on the property by virtue of an execution in favor of Hall and Miller. There is no evidence that Hall or Miller participated in or directed the levy or sale. 2 Estee's Pl. 208, §§ 74, 79, and cases cited. This fact must be proven. It cannot be inferred that Hall or Miller directed the levy or sale of any property, except that of the execution debtors.

The fact of a demand in the case must be proved on the trial. There is no evidence that any demand was ever made of Boley, Hall or Miller, or that they were joint trespassers, or refused to deliver. Civ. Prac. Act, § 177; Daumiel v. Gorham, 6 Cal. 44;Killey v. Scannell, 12 Id. 75; 2 Estee's Pl. 210, §§ 73, 84. The answer denied every material allegation of the complaint.

Evidence was improperly introduced upon the question of special damages, which were not demanded in the complaint.

Respondent must bring herself within the provisions of the statute exempting her property from execution. Act 1865, 369. She must show that the debt for which the execution issued was not for necessaries, etc. On this point there is no evidence. She must show that the list referred to was on the records of the proper county when the levy was made. The court erred in allowing respondent to state her reasons for not filing her list of property sooner. The reasons could not excuse a strict compliance with the law.

The value of the property, as found by the jury, was excessive, and not supported by any evidence.

At common law, marriage is an absolute gift to the husband of the goods of the wife at the time of marriage. The common law recognizing this doctrine has been adopted in this Territory. The husband is not a party to this action. This action must stand or fall on respondent's title to the property.

The statute requiring the wife's separate property to be on record must be strictly construed. The property, up to the time of filing the list required by the statute, is absolute in the husband. The property in controversy was that of the husband of respondent at the time the debt was contracted by him with appellants. A husband cannot give his wife property to defeat the collection of his debts due at the time. There is no evidence that respondent ever received the property from her husband. How then did the property become that of respondent?

If the husband has transferred the property to respondent, it is only to the extent of making it exempt from his debts. This does not give respondent possession or dominion over the property, and she cannot maintain an action of replevin therefor. The filing of the list does not operate as a gift or sale to respondent.

The statute exempts only future debts of the husband, and does not include those that exist at the time of filing the list. The property of the husband is subject to his debts incurred before such filing. It is a new right given without a new remedy. If the new right does not confer possession, the wife cannot maintain replevin. The only remedy of the wife is to prevent the sale of the property by injunction.

Respondent's husband was entitled to the possession of the property as against a trespasser, and she brings an action for it. If the action was by the husband, his possessory right was subject to the attachment. If respondent could maintain replevin against a trespasser, the sheriff, Boley, was not a trespasser for levying upon the possessory right of respondent's husband.

SHOBER & LOWRY, W. F. SANDERS and CHUMASERO & CHADWICK, for respondent.

The taking alleged in the complaint is not denied, but admitted. Appellants say the taking was not “wrongful” or “unlawful.” Lay v. Neville, 25 Cal. 549;Fish v. Redington, 31 Id. 185. No proof of Hall and Miller participating in the sheriff's taking was required.

The evidence of special damages was not objected to by appellants at the trial, and no exception was saved thereto, and judgment cannot be reversed therefor.

The record shows that the debt in the case, under which the seizure was made, was a debt of a ditch company, and not for necessaries to respondent.

The errors of law raised by the statement relate to the order of proof, which was within the discretion of the court. Respondent did not attempt to prove ownership by general reputation. Such proof was introduced to meet the allegations of the answer that she had perpetrated a fraud, or been culpably silent. 1 Cal. Dig. 329, § 89. Respondent had caused her ownership to be known by recording the list of property and complying with the statute.

The specifications of error do not point out the particular errors and must be disregarded. Civ. Prac. Act, § 195. No exceptions to the giving or refusing of instructions were taken at the trial.

Appellants set up an equitable estoppel as a defense. This cannot be pleaded or proven against a femme covert. U. S. Bank v. Lee, 13 Pet. 107;Morrison v. Wilson, 13 Cal. 494. If her actions and words do not constitute an estoppel, her silence is not such estoppel.

The failure to record the lists does not vest the wife's property in her husband, but makes it liable for his debts, as at common law.

A general exception will not be reviewed on appeal. Exceptions to the charge to the jury must point out the specific portions excepted to. Hicks v. Coleman, 25 Cal. 132;Newell v. Doty, 34 N. Y. 89; 3 Estee's Pl. 503.

Appellants do not show in the statement wherein the evidence is insufficient to sustain the verdict. Sanchez v. McMahon, 35 Cal. 218; 3 Estee's Pl. 618.

A judgment will not be set aside as against the weight of evidence, except in extraordinary cases. Kimball v. Gearheart, 12 Cal. 27;Treat v. Reilly, 35 Id. 129.

When the taking of property is unlawful, no demand is necessary before bringing a suit. Paige v. O'Neal, 12 Cal. 483.

Appellants cannot now object that there is a misjoinder of parties. They should have demurred in the court below. Civ. Prac. Act, § 45.

WADE, C. J.

This is an action to recover possession of seventy-one head of cattle, alleged to be the property of plaintiff, and wrongfully taken and detained by defendants. It is an ordinary action of claim and delivery of personal property, and by the record it appears, that on the 1st day of July, 1870, the defendant E. M. Boley, as sheriff of Jefferson county, seized the property in question as the property of Cornelius Griswold, by virtue of a writ of attachment duly issued in a suit wherein L. C. Miller and S. M. Hall were plaintiffs, and William Berkins, George Cleveland, Cornelius Griswold and William Munn were defendants; whereupon Sarah M. Griswold, plaintiff, wife of said Cornelius Griswold, claimed the property attached as her sole and separate property, and caused the same to be replevied from the sheriff, and the main question in the trial below was as to the title and the right to the possession of the property in litigation.

The cause comes into the court on appeal from an order overruling a motion for a new trial. Objection is made that the statement on motion for a new trial does not sufficiently, and with sufficient certainty, specify and point out wherein the evidence is insufficient to justify and support the verdict, or wherein the errors of law complained of occur.

The requirements of section 195 of the Code, wherein the mode of proceeding for a new trial is given, seem incapable of being misunderstood or misinterpreted. It is therein provided that the party intending to move for a new trial shall give notice to the adverse party, and that the notice shall designate generally the grounds upon which the motion will be made, and that when the notice designates as the ground upon which the motion will be made the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient, and when the grounds of the motion are errors of law occurring at the trial, and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. The object of these requirements, and the reason why they are imposed upon the party moving for a new trial, is to notify the adverse party and the court of the exact error complained of, so that the evidence in the statement may be confined to the elucidation, pro and con, of the matter complained of.

This section does not contemplate that all the evidence produced upon the trial shall be contained and reproduced in the statement, but only so much thereof as is applicable to maintain or to defeat the questions raised on appeal.

The motion must designate and specify with exactness and precision the grounds upon which the motion will be made, and these specifications must be carried into the statement and form a part thereof, and only so much of the evidence shall be reproduced as tends to explain the specifications of error.

The cause on appeal is to be tried upon questions of law and fact, raised in the statement, and a statement that makes a general assignment of errors as to the law and fact, calls upon the appellate court to form itself into a sort of investigating committee to hunt after possible errors, in the hope that the court will find what the appellant has been unable to do, and if the court should take any notice of such general assignment of errors, it would necessarily be compelled to try the case over again upon the facts, like a case in equity, upon the pleadings and proofs. This...