Rosenbaum v. Hayes
| Decision Date | 29 June 1899 |
| Citation | 79 N.W. 987,8 N.D. 461 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Morton County; Winchester, J.
Action by Morris Rosenbaum and others against Jerry Hayes, as sheriff of Stark county. Judgment for defendant, and plaintiffs appeal.
A. B Melville, J. G. Campbell, and Ball, Watson & Maclay, for appellants.
It has once been held in this case that under the evidence the question of delivery of possession was a question of fact. Rosenbaum v. Hayes, 5 N.D. 477. Defendant's motion for a directed verdict was equivalent to a demurrer to the evidence, and the rule in such cases is well settled. Cameron v. The Great Northern Railway, 8 N.D. 124 77 N.W. 1016. It was not necessary to show the authority of the agent of the railroad company to issue the bill of lading even as against the company. A fortiori it was not necessary as against third persons. Hanson v. Ry. Co., 41 N.W 529; Brooks v. Rd. Co., 21 Am. & Eng. R. R. Cas. 64. The bill of lading was admissible even though not authorized. Prince v. Ry. Co., 101 Mass. 542; Bryant v. Nix, 4 M. & W. 775. It was error for the Court to strike out the drafts admitted in evidence to show payment. 1 Greenl. on Ev. § 38; 2 Greenl. on Ev. § § 475, 518; 18 Am. & Eng. Enc. L. 206; State v. Brooks, 52 N.W. 240; Peavey v. Hovey, 20 N.W. 272; Baring v. Clark, 19 Pick. 220. There never was a waiver of the factor's lien or an election to rely on the claim of ownership as against the attachment. But the claim of a factor's lien was not inconsistent with a claim of ownership if the latter claim failed through lack of proof of notice. Holbrook v. Wight, 35 Am. Dec. 610. Even if the claims are inconsistent plaintiffs made their election when they brought this action claiming under a factor's lien. 7 Enc. Pl. & Pr. 364, n. 1. Election of remedies or waiver of lien is a defense which must be pleaded in order to be available. Rev. Codes, 5273; Roberge v. Winnie, 39 N.E. 932; Nysewander v. Lowman, 24 N.E. 355. Words, unless designed to influence the course of a party concerned and actually having that effect, will not constitute election. 7 Enc. Pl. & Pr. 367.
Alexander Hughes, James B. Kerr, and George W. Newton, for respondent.
The allegation that the sheep were attached and that they were levied upon by virtue of a writ of attachment is, in legal effect, an admission that the writ was issued in due course of law and that all the preliminary conditions to its issue existed and were complied with. Bowersock v. Adams, 55 Kan. 681; Carpenter v. Sherman, 35 Wis. 109; Remington v. Benoit, 36 A. 718. When a public officer has done an act which, if certain preliminary conditions have not been complied with, is illegal, it will be presumed that such preliminary conditions were complied with. Best on Ev. page 657, n. 1. One who claims that any such pre-requisite did not exist must affirmatively show the fact. Nofire v. U.S. 164 U.S. 657, 17 S.Ct. 212; Valley Township v. Bridge Co., 4 Kan.App. 622; Board of Education v. Boyce, 47 P. 1090; Ch. 110, Subd. 15 of Sec. 3, Laws 1897, page 178; Knox County v. Bank, 147 U.S. 91, 13 S.Ct. 267; Long v. Rush, 47 N.E. 156; Carpenter v. Scott, 53 N.W. 329; Naslen v. Haynes, 2 Nev. 53; Didley v. Sherman, 2 Nev. 67. A record is substantially a written history of the proceedings from the beginning to the end of a case. United States v. Taylor, 147 U.S. 698; In re Bennett, 84 F. 326. Courts take judicial notice of their own records and judgments. Subd. 19, Sec. 2, Ch. 65, Laws 1897; State v. Stevens, 56 Kan. 723; State v. Bowen, 16 Kan. 475; In re Bennett, 84 F. 327; Poole v. Leroy, 70 Ia. 275; Pittel v. Ins. Co., 86 F. 255; Kimball v. J. S. M. Co., 9 Col. 349; Allen v. Swoope, 44 S.W. 78; Cent. Trust Co. v. Asherville, 72 F. 365; Bruckel v. State, 19 Wis. 567. They may take notice of other records in the court, and are not bound to limit judicial notice to records in the case on trial. Denny v. State, 144 Ind. 517; Fredericks v. Daniels, 6 Mont. 462; Washington Ry. Co. v. Ry Co., 160 U.S. 77; Treat v. Dunham, 41 N.W. 876. It is therefore incumbent upon this Court to take judicial notice of its findings and decision in Rosenbaum v. Hayes, 5 N.D. 476, where the Court find that the sheep in question were taken in replevin from Jerry Hayes who seized them as sheriff on attachment. Also in the case of Ganz v. Beasley, 4 N.D. 140, where the Court find that the defendants made a general appearance in that action, and that Joseph Ganz made and filed affidavit for attachment, that upon an attachment duly sued out Jerry Hayes as sheriff seized the sheep. The settled case on the last appeal (5 N.D. 476) is a record of the District Court in this action, (Subd. 2, § 5489 Rev. Codes) and is made a part of the record in this appeal. It appears therefrom W. W. Beasley & Sons are the same firm as George M. Beasley & Co. That Jerry Hayes as sheriff attached at the suit of Ganz in 1893, as the property of Beasleys 5,600 sheep. Courts take notice of all prior proceedings in the case. Subd. 13, § 2, Ch. 65, Laws 1897. The word "proceedings" here means any step taken by a suitor to obtain the interposition or action of the court. Irwin v. Bank, 6 Ohio St. 81; Dea v. Washington Co., 3 Neb. 118; Wilson v. Mackin, 7 Neb. 50; State v. Stevens, 46 Kan. 720. The papers in the attachment suit are sufficient prima facie evidence of indebtedness in action against the sheriff by a third party. Treat v. Dunham, 41 N.W. 876; Howard v. Dwight, 66 N.W. 935; Hall v. Stryker, 27 N.Y. 45; Rinchey v. Stryker, 28 N.Y. 45; Fuller v. Sears, 5 Vt. 527. The Court should inform the jury of facts of which it takes judicial notice. State v. Stevens, 56 Kan. 723. The sheep were not entrusted to appellants as factors in the due course of business. The fact that Beasley accompanied the sheep when shipped and unloaded them at Dickinson, disproves that they were in the possession of the railroad company as agent for plaintiff. Edwards on Bailments, 573; Hutchinson on Carriers, § 217; Ill. Cent. Ry. Co. v. Morrison, 19 Ill.App. 136; Terre Haute & L. Ry. Co. v. Sherwood, 132 Ind. 129; Heller v. Ry. Co., 109 Mich. 53; 4 Elliott on Rys. § 1549-1552; Burger v. Ry. Co., 75 N.W. 192; Grieve v. Ry. Co., 74 N.W. 193; Clark v. Ry. Co., 64 Mo. 240. The terms of the bills of lading disprove plaintiffs' contention. Porter on Bills of Lading, § 421, 424. The bill of lading could not represent the first train load of sheep because they were transported, unloaded and taken onto the range before the bill was made. Porter on Bills of Lading, § 424-425. The sheep were herded together on the range and no attempt was made to identify those included in the second shipment, to establish a lien thereon. Scheuler on Per. Prop. § 47; Hamilton v. Robinson, 8 Md. 321; Foster v. Warner, 49 Mich. 643; McDowell v. Russell, 37 Pa. 164; Rosenberg v. Thompson, 8 S.W. 895; Kelley v. Kelley, 77 Me. 135; Robinson v. Holt, 39 N.H. 557. The herding of the sheep on the range by herders employed by plaintiffs was not sufficient to create a factor's lien in their favor. 2 Kent's Com. 637; 2 Par. on Conts. (8th Ed.) 99; Dixon v. Stansfield, 10 C. B. 399; Thacher v. Moors, 134 Mass. 156. The herders were employed by plaintiffs through Beasley as agent. Beasley was not competent as the agent of plaintiffs to invest plaintiffs with possession by engaging herders on their behalf. Wordall v. Smith, 1 Camp. 333. The rule as to the change of possession from the principal to the factor and the continued possession necessary to protect the factor against an attachment by a creditor of the principal is the same as in the sale of personal property under a statute making such sales fraudulent unless accompanied and followed by an actual and continued change of possession. McFarland v. Wheeler, 26 Wend. 467; Dook v. Brubaker, 1 Nev. 185; State v. Benham, 84 N.Y. 638; Parker v. Kendrick, 29 Vt. 390; Brunswick v. McClay, 7 Neb. 137; Rosenbaum v. Hayes, 5 N.D. 479. The change of possession necessary to protect a sale of chattels against creditors of the vendor must be open, notorious, actual, visible, unequivocal, substantial and continued. Claflin v. Rosenberg, 97 Am. Dec. 340 and note; Conrad v. Smith, 2 N.D. 408; Morrison v. Oium, 3 N.D. 76; Grady v. Baker, 3 Dak. 298. That the property was in possession of the hired man of the vendor, who had agreed to take care of the same for the vendee is not sufficient change of possession to give notice to creditors. Flanagan v. Wood, 33 Vt. 327. Plaintiffs' claim of ownership was inconsistent with their claim for lien thereon. It amounted to a repudiation, waiver or abandonment of their lien claim. Picquat v. McKay, 2 Blackf. (Ind.) 465; Hudson v. Swan, 83 N.Y. 560; Everett v. Buchanan, 2 Dak. 260; 13 Am. & Eng. Enc. L. 624, note 2; Cox v. Harris, 62 Am. St. Rep. 188.
The opinion upon a former appeal may be found in 5 N.D. 476, 67 N.W. 951. We restate the facts as there stated: The plaintiffs are seeking to recover in replevin the possession of 5,600 sheep from the defendant, who, as sheriff, seized them on attachment against George M. Beasley & Co. The plaintiffs base their right to possession upon a factor's lien for a general balance due them from Beasley & Co. on account of advances made by them as commission merchants to Beasley & Co. under an agreement that Beasley & Co. were to purchase sheep, and consign them to plaintiffs, in the City of Chicago, to be sold by plaintiffs, as commission merchants, on account of Beasley & Co.; all the surplus after reimbursing the plaintiffs for their advances and expenses in the business, and after paying their commissions on such sales, to be turned over to Beasley & Co. There was evidence...
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