Palmer v. Mcmaster

• Decision Date: 15 September 1888
• Citation: 8 Mont. 186
• Parties: PALMER v. McMASTER.
• Court: Montana Supreme Court

8 Mont. 186

PALMER

v.McMASTER.

Supreme Court of the Territory of Montana.

September 15, 1888.

Appeal from district court, Deer Lodge county.

Action by Emma J. Palmer against James B. McMaster for the value of her property levied on by defendant under executions against her husband. Verdict for defendant, and plaintiff appeals.

Cole & Whitehill, for appellant. Robinson & Stapleton, for respondent.

LIDDELL, J.

This is a suit against the sheriff for $2,100, the value of certain personal property which the plaintiff avers belongs to her, and the possession of which she was wrongfully deprived of by the defendant under writs of attachment and execution issued against her husband, W. J. Palmer. She sets forth in her complaint and replication that the property belonged to her at the time of her marriage, and a list thereof was duly recorded, as the law directs, in the recorder's office of the county in which she lived, on the day of her marriage with the defendant in execution. In his reply the sheriff justifies the seizure of the property by averring that he held the same under writs of attachment issued from the district court for Deer Lodge county in the cases of James M. Baily and A. Kleinschmidt and A. Smith v. W. J. Palmer, and also under a writ issued from the probate court of said county in the case of James M. Baily v. W. J. Palmer; that afterwards the suits in the district court ripened into judgments, and, under execution in said cases, he sold the property for $907, which is and was its true value; finally, he denies that the property in dispute belonged to the plaintiff, and avers the ownership thereof to be in the judgment debtors, thereby putting the wife to the proof of her allegation. Upon these issues the parties went to trial, and the result was a verdict and judgment for the defendant, from which an appeal is taken to this court. The case is before us upon bills of exception taken to the ruling of the judge a quo in excluding and admitting evidence, and will be considered in the order in which they appear.

During the progress of the trial the plaintiff offered in evidence the judgment roll in the case of Lena Owens (maiden name of the present plaintiff) v. W. W. Jones and Charles S. Warren, decided in the district court of Deer Lodge county some years before the present suit was instituted. The defendant objected to its reception in evidence, for the reason, among other objections, that, the defendant not having been a party to that suit as to him, it was res inter alia acta. From the ruling of the district judge in sustaining this objection the plaintiff reserved a bill, and urges with great earnestness its incorrectness; but we have not been referred to any authorities in the brief or oral argument which would sustain the admission of the judgment roll, unless it be a judgment in rem. From an examination of the record offered in evidence, it appears that, several years prior to the commencement of the present suit, a judgment creditor of the plaintiff's husband had caused the sheriff (Jones) to seize under execution certain horses, mares, and colts as belonging to the judgment debtor. Whereupon Lena Owens, the wife, sued the sheriff for the recovery of the property or its value; alleging ownership or possession, and that she had duly filed in the proper office, on the day of her marriage with Palmer, a list of the property in dispute. This list, as above stated, included a large number of mares, horses, and colts; but the sheriff in his answer only put her to the proof of ownership of the first 10 head mentioned in that list, as the rest of the property had been released from seizure prior to the institution of such suit. There was a judgment for the plaintiff, but no contest arose, except as to the 10 head mentioned above: and it is very evident that, if it was a judgment in rem, it certainly could not be for any other property than that about which there was a contest. Manifestly the judgment in the Owens Case did not fix the status of the property in dispute, except as between the parties to that suit; for to hold otherwise would be to open the door to fraud. If such judgments could be treated as judgments in rem, which are res adjudicata as to all the world, nothing would be easier than to obtain such by collusion; thereby binding all of the husband's creditors who were not parties to the proceedings. The position of the plaintiff would have been correct if the contest had been with the executor, administrator, or assignee of the husband; for in such case the creditors collectively would have been represented. The judgment offered in evidence is not even pleaded by way of estoppel; nor can it be said, from an inspection of the judgment roll in this case, and the record in the present suit, that the property in dispute is the same in both litigations. The creditors of the husband have the right at any time to inquire into the ownership of property standing in the name of the wife; and in the present case it is plain from the pleading that, if the wife is the owner of the property in dispute, her title to the same arose long anterior to the time of the suit between Lena Owens and W. W. Jones et al., and consequently the record in that case could serve no purpose whatever in establishing the ownership of the property in controversy. There is no aspect of the case under which the judgment roll was admissible in evidence, and consequently no error in the ruling of the court excluding it.

The next bill of exceptions presents a much more important question, and is one taken by the plaintiff to the ruling of the court in permitting the defendant to offer in evidence the judgment rolls in the cases of James M. Baily v. W. J. Palmer and Albert Kleinschmidt et al. v. W. J. Palmer, from the district court of Deer Lodge county; and also the judgment roll in the case of James M. Baily v. W. J. Palmer, from the probate court of said county. These suits were commenced, respectively, on December 10, 1883, November 21, 1883, and January 30, 1884; and the rolls consist of the complaint, the summons, with the sheriff's return thereon that he was unable to find the defendant in the county, an affidavit of a clerk of a newspaper to the publication of the summons, and the judgment. The plaintiff objected to their reception in evidence, for the reason that there was never any service of the summons as the law directs; and, the courts being without jurisdiction, the judgments were therefore void. The judgment rolls were offered in evidence by the sheriff for the purpose of showing the authority under which he made the seizure and sale of the property in dispute; and it would seem that the plaintiff's objection would go rather to the effect of the evidence than to its admissibility. For whether the authority or judgment under which the writs were issued is sufficient in law to protect the sheriff is quite a different question from that of the admissibility of the evidence. At first, we were inclined to hold with the district judge, and admit the evidence; but, on a reconsideration of the question, we have thought best to conform to the practice as sanctioned or acquiesced in by the United States courts, which permits the sufficiency of the judgment to come up on bill of exception to its admissibility in evidence. See Galpin v. Page, ...