Kloos v. Gatz
| Decision Date | 19 January 1906 |
| Docket Number | 14,642 - (167) |
| Citation | 105 N.W. 639,97 Minn. 167 |
| Parties | LINNA KLOOS v. G. A. GATZ |
| Court | Minnesota Supreme Court |
Action in the district court for Carver county to recover $1,000 for the conversion of certain wheat. The case was tried before Morrison, J., who granted a motion to dismiss the action upon the close of the testimony, and a jury. From an order denying a motion for a new trial, plaintiff appealed. Reversed.
Conversion.
Action for an alleged conversion of wheat, which the defendant as sheriff levied upon by virtue of an execution against the husband of the plaintiff. Held:
That the evidence was sufficient to take the case to the jury upon the question of such conversion, and that the court erred in dismissing the action at the close of the plaintiff's case.
S. R Child and Benjamin Drake, Jr., for appellant.
W.C. & W. F. Odell, for respondent.
Action for the alleged conversion of six stacks of wheat by the defendant as sheriff of the county of Carver. The complaint alleged that the plaintiff was the owner of the wheat; that on August 22, 1904, the defendant, as sheriff, unlawfully levied upon it by virtue of an execution in a judgment in favor of Henry Baer against Louis C. Kloos, and thereby converted the same to his own use; that by reason of the levy the plaintiff was prevented from taking possession of the wheat and threshing it; and, further, that on September 22, 1904, the wheat was burned up without fault of the plaintiff. The answer denied the allegations of the complaint, except as therein admitted. It admitted and alleged that the defendant as sheriff levied upon the wheat by virtue of the execution by indorsing thereon a return of the levy and depositing a certified copy of the execution and return in the office of the town clerk, without taking possession of or removing any of the wheat, and, further, that at the time of such levy the judgment debtor was the owner and in possession of the wheat, which was destroyed by fire, without any fault of the defendant, at the time stated in the complaint. The reply denied the allegations of new matter in the answer.
Upon a trial of the cause in the district court of the county of Carver with a jury, and at the close of the plaintiff's case, the court, upon motion of the defendant, dismissed the action on the ground that the evidence was not sufficient to show a conversion of the wheat by the defendant. The plaintiff appealed from an order denying her motion for a new trial.
The question for our decision is whether the evidence was sufficient to take the case to the jury on the question of the alleged conversion of the wheat by the defendant.
The evidence tended to show: That the plaintiff owned the stacks of wheat which were standing on a tract of land rented by her, containing sixty acres and situated about one-half mile from the homestead of the plaintiff and her husband. That an execution against the plaintiff's husband was delivered to the defendant as sheriff for collection, and with it he went to the home of the plaintiff and asked her if she had some wheat on the sixty acres. She answered that she had. He then asked her how many stacks. The reply was six. He then said he had an execution, and if it was not paid he would have to levy. That on the next day, August 20, 1904, he went to the sixty acres to see what there was in the line of wheat, and saw six stacks of wheat. There was no one there. After this he indorsed a levy upon the execution, which so far as here material was in these words:
I hereby certify and return that by virtue of the within execution I have on this 20th day of August, A.D. 1904, at the town of Dalgren, in said county, levied on all the right, title, and interest of the within-named defendant in and to the following described personal property, to wit, * * * six stacks of wheat, situated on the west 60 acres of section 10, Dalgren Town
the wheat in question.
And on August 22, 1904, he filed a certified copy of the execution and return in the office of the town clerk and also made service on the execution debtor by leaving a similar certified copy at the house where the debtor and his wife, the plaintiff, then resided. That the defendant did not remove any part of the wheat or take it into his manual possession. He did nothing with reference to it, other than as herein stated. That some five days after the levy the plaintiff's husband, acting for her, saw the defendant and asked that the levy be released, so that he could thresh the wheat; but the defendant refused to release the levy. That the husband again saw the defendant on September 2, 1904, and left with him an affidavit of plaintiff's ownership of the wheat, and substantially the same conversation was repeated. Again on September 21, the husband asked the defendant to release the wheat...
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