Michener v. Fransham

• Decision Date: 08 December 1903
• Parties: MICHENER v. FRANSHAM.
• Court: Montana Supreme Court

74 P. 448

29 Mont. 240

MICHENER v. FRANSHAM.

Supreme Court of Montana

December 8, 1903

Commissioners' Opinion. Appeal from District Court, Gallatin County; Henry C. Smith, Judge.

Action by Thomas Michener against W. J. Fransham. From a judgment for plaintiff, defendant appeals. Reversed.

John A Luce, for appellant.

E. B Hoffman, for respondent.

CALLAWAY C.

This action was commenced by the plaintiff to recover of the defendant the sum of $136.65 alleged to be unlawfully withheld form the plaintiff by the defendant. The complaint alleges that the defendant was at all of the times there in mentioned sheriff of Gallatin county, Mont.; that on or about the 15th day of August, 1899, one Ira De Long commenced an action against the plaintiff and one Bert Michener; that in said action a writ of attachment was issued, whereby the defendant garnished $136.65 in the hands of one Vreeland belonging to the plaintiff; that Vreeland made answer to the garnishment, and prior to the commencement of this action paid the sheriff the said sum; that thereafter, on February 17, 1900, the action was dismissed as to plaintiff, and judgment, was rendered against Bert Michener; that the money so attached was the sole property of the plaintiff; that since February 17, 1900, no action has been pending against the plaintiff; that prior to the commencement of this action the plaintiff demanded the said money of the defendant, who refused to deliver it, but, on the contrary, unlawfully and wrongfully withheld the same, and has ever since so withheld it. The defendant filed an answer, in which he denied plaintiff's ownership of the money, and admitted that he refused and still refuses to deliver the same to plaintiff, or any one for him.

The controversy is, to whom does the attached money belong? Upon the admissions in defendant's answer plaintiff could have made out a prima facie case by testifying to the ownership of the money as alleged in his complaint, and the burden of proof then would have been upon defendant to establish that the money was the property of some person other than plaintiff. Gallick v. Bordeaux, 22 Mont. 470, 56 P 961; Reynolds v. Fitzpatrick, 28 Mont. 170 72 P 510. Instead of following the course just indicated, plaintiff undertook to show how he became the owner of the money, and chiefly by witnesses other than himself. It seems that the money was due plaintiff, or his brother, Bert Michener, or plaintiff and his brother, jointly, on account of lumber furnished for the construction of a bridge for the county across the West Gallatin river. On behalf of the plaintiff one Thorpe testified that he, as surveyor of Gallatin county, had contracted with plaintiff for certain lumber for said bridge, and that he (Thorpe) thereafter substituted one Vreeland in his stead. During his cross-examination Thorpe testified as follows: "I don't just remember when I had a conversation with Mr. De Long in the presence of Mr. Brassfield in my office. I did not, in a conversation with Mr. De Long and Mr. A. G. Brassfield in my office in Bozeman, Gallatin county, in August, 1899, tell him (De Long) that my dealing in regard to this contract had been with Bert Michener." Vreeland, who took Thorpe's place in the construction of the bridge, ratified the contract Thorpe had made with plaintiff, but said he was undecided as to which one of the Micheners furnished the lumber. He paid the money due thereon to the sheriff. In his return to the sheriff upon the garnishment he made this statement: "I hereby acknowledge that I have in my possession $136.65 owed by me to the sawmill on the West Gallatin river of material by the Michener Brothers. This amount is in full of all demands of said Michener Brothers on date of September 8, 1899, the date of your service of garnishment. *** The Michener Brothers above referred to are Thomas Michener and Bert Michener, the defendants in an action wherein Ira De Long was plaintiff and Thomas and Bert Michener were defendants." The plaintiff testified that he furnished the lumber to Vreeland, but was not completely paid for it; that he had no other contract with Vreeland, and the latter did not owe him any money other than upon such contract for lumber. The defendant undertook to prove that the money was not the property of plaintiff. To this end he endeavored to show that the sawmill was run by Bert Michener, and the contract for the lumber was made with him. Ira De Long, a witness for defendant...