McClellan v. Pyeatt, 32.

• Decision Date: 16 May 1892
• Docket Number: 32.
• Citation: 50 F. 686
• Parties: McCLELLAN et al. v. PYEATT et al.
• Court: U.S. Court of Appeals — Eighth Circuit

50 F. 686

McCLELLAN et al. v. PYEATT et al.

No. 32.

United States Court of Appeals, Eighth Circuit.

May 16, 1892

George E. Nelson and Wm. M. Cravens, for plaintiffs in error.

John H Rogers, for defendants in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

CALDWELL Circuit Judge.

The defendants in error on the 3d day of October, 1889, recovered a judgment in the United States court for the Indian Territory against William P. McClellan for the sum of $7,598.07, upon which execution was issued on the next day and was levied by the marshal on the 5th day of October on certain cattle and horses, as the property of the defendant in the execution. The property so levied upon was claimed by Charles M. McClellan, who executed a bond conditioned as required by section 3042, Mansf. Dig. Ark., with the defendant Lipe as his surety. Thereupon the plaintiff gave notice, as provided by section 3045 of the same digest, and the trial of the right to the property levied on by the marshal, and claimed by the plaintiff in error McClellan, proceeded in the mode provided by statute, (sections 3042-3047, Mansf. Dig. Ark.) The case was tried by a jury, who found the issues for the plaintiffs in the execution, and assessed their damages at $930 and interest, for which sum judgment was rendered against the claimant, Charles M. McClellan, and Lipe, as surety on the bond, who thereupon sued out this writ of error.

It is said in the brief of counsel for plaintiffs in error that 'there was no sufficient recital in the bond of an appraisement. The names of the appraisers do not appear in it. Each article is not appraised, nor does it appear how or by whom the appraisers sworn. ' But this was not assigned for error below, and the bond was introduced in evidence without objection, and appears to be in proper form.

The first eight assignments of error relied on in the brief of counsel for the plaintiffs in error relate to instructions given and refused by the court. The court charged the jury at considerable length. The instructions deal with the various aspects of the case, and embrace 11 different points or propositions. The plaintiffs in error excepted to the whole charges in mass. The greater part, if not the whole, of the charge, was good law. Whether any part of it is erroneous we will not inquire, because the rule is well settled that 'if the entire charge of the court is excepted to, or a series of propositions contained in it is excepted to in gross, and any portion thus excepted to is sound, the exception cannot be sustained. ' Beaver v Taylor, 93 U.S. 46; Lincoln v. Claflin, 7 Wall. 132; Cooper v. Schlesinger, 111 U.S. 148, 4 S.Ct. 360; Burton v. Ferry Co., 114 U.S. 474, 5 S.Ct. 960. The court would be justified in disregarding this assignment of errors for another reason. The twenty-fourth rule of this court requires the brief of the plaintiff in error to contain a specification of the errors relied on, and, 'when the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused. ' This requirement has not been observed by the plaintiff in error in this case. Where the record discloses 'a plain error, not assigned or specified,' we would not be inclined to rigidly enforce this rule, but there is nothing persuasive in this record to induce us to waive it.

What has been said with regard to the exception to the charge given by the court is equally applicable to the exception to the refusal of the court to give the instructions asked by the plaintiffs in error. These comprise a series of six propositions, preferred as one request,' the defendant excepted. The sixth proposition of the series was misleading, and not warranted by the pleadings or the facts. Its purpose was to induce the jury to believe that the officer's return that he had levied on the property, and the distinct recital to that effect in the bond executed by the plaintiffs in error, were not sufficient evidence of that fact. This request was properly refused, and, where one of a series of propositions preferred as one request is unsound, an exception to a refusal to charge the whole series cannot be maintained. See authorities cited supra.

The court rightly permitted the marshal...