Lampsen v. Brander

• Decision Date: 23 December 1881
• Citation: 28 Minn. 526
• Parties: ALBERT B. LAMPSEN, an Infant, by his next Friend, <I>vs.</I> WILLIAM BRANDER and another.
• Court: Minnesota Supreme Court

28 Minn. 526

ALBERT B. LAMPSEN, an Infant, by his next Friend,vs.

WILLIAM BRANDER and another.

Supreme Court of Minnesota.

December 23, 1881.

Appeal by defendants from an order of the municipal court of Minneapolis, refusing a new trial.

Geo. R. Robinson, for appellants.

Chas. G. Parke, for respondent.

MITCHELL, J.

The complaint in this action, brought in the municipal court of the city of Minneapolis, alleges that on or about October 1, 1880, the plaintiff was the owner and in possession, in Hennepin county, Minnesota, of a cane mill, personal property, of the value of $50, and that the defendants, on that day, wrongfully and unlawfully took and carried away said mill from the possession of the plaintiff, and converted the same to their own use, to plaintiff's damage, etc. The defendants answer jointly, and after denying ownership and possession of the mill in the plaintiff, they deny "that they, or either of them, took and carried away said mill from the possession of said Lampsen," and there is no further denial of the taking or conversion. They then allege that the defendant Hills was a constable of Hennepin county, and that, by virtue of a writ of attachment, issued in an action in a justice's court wherein the defendant William Brander was plaintiff and one Nathan Lampsen was defendant, he, (Hills,) as such constable, attached and took into his possession the mill in question, which was then in the possession and the property of Nathan Lampsen; and that, judgment having been afterwards entered for the plaintiff in such action, an execution was issued thereon and delivered to Hills, and he, as such constable, sold the attached property thereon to satisfy such judgment and execution. The case came to trial on these issues before the court, without a jury, and, a decision having been filed for the plaintiff against both defendants, they moved for a new trial on the ground that the decision is not justified by the evidence and is contrary to law, and for newly-discovered evidence, which motion was denied, and the case is brought to this court by appeal from the order denying the same.

The errors assigned by the appellants, necessary to be considered, are as follows:

1. That there was no evidence to connect the defendant Brander with the acts complained of, and that judgment should not, therefore, go against him. It is true that there was no evidence that he was present at the time of, or directed or advised, the taking. So far as defendant Hills is concerned, there can be no doubt that the justification which admits a taking controls the denial in the former part of the answer; — McClung v. Bergfeld, 4 Minn. 99 (148;) Derby v. Gallup, 5 Minn. 85 (119;) Scott v. King, 7 Minn. 401 (494;) — and we are inclined to the opinion that the effect of the pleading, in the form in which the denials and allegations are made, is to put the other defendant in the same position of relying upon the justification. The answer being joint, all the denials and allegations therein are to be treated as made by both defendants; and the denial that the defendants, or either of them, took the property from the possession of the plaintiff, is to be construed in connection with the allegation that the defendant Hills took it, by virtue of the writ in favor of his codefendant, from the possession of Nathan Lampsen. If the denial be treated as a denial of any taking at all, then the defendants are both in the position of denying what they subsequently allege to be true. On the other hand, if the denial is treated as a denial of possession by the plaintiff at the time of the taking, and not a denial of the fact of taking, then it is consistent with the allegation of a taking by Hills from the possession of the defendant in the writ. It is not necessary to a conversion that the property should be taken from the possession of the plaintiff. It would seem, therefore, that the intention was to put the defence of both defendants upon the same ground, viz., the right to take the property as the property of Nathan Lampsen, by virtue of the writ in the hands of the constable. No evidence, therefore, was necessary to connect Brander with the taking, there being no sufficient denial of it in the answer.

2. The defendants claim that no sufficient affidavit of the claim and title of the plaintiff was served on the defendant Hills to comply with the requirements of Gen. St. 1878, c. 66, § 154. It is well settled that no such notice is necessary unless the property, at the time of the seizure by the officer, is in the possession of the defendant in the writ, or his agent, under such circumstances as to create a presumption prima facie of ownership in him. The court below finds that the property in question was taken from the possession of the plaintiff, and not from that of the defendant in the writ, and therefore no notice was necessary. The defendants' counsel argue that the finding on this point is not supported by the evidence, but an examination of...