Ohlsen v. Manderfield

• Decision Date: 01 November 1881
• Citation: 10 N.W. 418,28 Minn. 390
• Parties: OHLSEN v MANDERFIELD
• Court: Minnesota Supreme Court

28 Minn. 390

10 N.W. 418

OHLSENvMANDERFIELD

Supreme Court of Minnesota.

Filed November 1, 1881.

Appeal from order of district court, county of Brown.

J. M. Thomson, for respondent.

S. L. Pierce and J. Newhart, for appellant.

MITCHELL, J.

Appeal from an order denying a new trial. The grounds of the motion were-First, errors in law occurring at the trial; second, that the verdict was not justified by the evidence. The action was for the wrongful taking and conversion of certain stacks of grain alleged to be the property of the plaintiff. The answer denies plaintiff's title, alleges title in one Conrad Gescke, and justifies the taking by defendant, as sheriff, under an execution against Gescke. The only error alleged to have occurred at the trial which was urged upon the argument, or which we deem necessary to notice, was the refusal of the court, on the motion of defendant, when plaintiff rested his case, to dismiss the action upon the ground, as we understand the case, that plaintiff had failed to show that he had served upon defendant sheriff an affidavit and notice of his claim, as required by section 154, c. 66, Gen. St. 1878. The motion was properly denied, for the reason, among others, that when plaintiff rested it had neither been admitted nor proven that defendant had taken the property as sheriff upon any legal process.

The defendant further contends that the evidence shows that the claim of ownership of the property by plaintiff was merely colorable, and a sham devised in fraud of the creditors of Gescke, and for that reason the court below erred in not granting a new trial. It appears from the evidence that the property in question was grain raised upon the farm of Gescke in the year 1880; that prior to that year, at least, Gescke lived upon the farm and cultivated it himself. The plaintiff introduced evidence tending to show that on the first of April, 1880, he rented the land from Gescke for the year 1880, for a cash rent by him paid to Gescke in advance; that under such lease he planted and raised the grain in question; and that the work which Gescke did in connection with the crops he was hired to do by plaintiff, the former continuing to live in the house situate upon the land, and the latter boarding with him. We admit that a consideration of the entire evidence impresses us with at least a suspicion that the transaction of the pretended lease might have been designed merely as a cover to put the crops out of the reach of process in favor of Gescke's creditors.

But the transaction might have been an honest one; and the jury having in substance so found, we cannot say that the verdict is not justified by the evidence, or that the court below erred in refusing to grant a new trial. This court will not reverse an order denying a new trial simply because they may be of opinion that the verdict is against the preponderance of evidence. The trial court had the advantage, not possessed by the court, of having heard the witnesses testify, and of seeing them upon the stand, and of observing their appearance and manner of testifying; circumstances upon which, to a considerable extent, the weight to be given to their evidence depends. Therefore, whether or not a new trial should be granted on the ground that the verdict is against the evidence, must, to a certain extent, be left to the...