Sakariason v. James
| Decision Date | 16 March 1917 |
| Docket Number | No. 1926.,1926. |
| Citation | 22 N.M. 437,163 P. 1080 |
| Parties | SAKARIASON ET AL.v.JAMES, SHERIFF. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Formal defects in the affidavit in actions of replevin must be taken advantage of before pleading to the merits; if not, they will be considered as waived.
A testator's wishes and directions, not precatory merely, must be followed if possible in all particulars, unless some appropriate tribunal authorize the executor to swerve aside.
Appeal from District Court, Socorro County; Mechem, Judge.
Replevin by James Sakariason against Emil James, as Sheriff of Socorro County. Judgment for defendant against plaintiff, and plaintiff appeals. Affirmed.
This is an action of replevin brought in the district court of Socorro county against Emil James, a duly elected, qualified, and acting sheriff of said county, by James Sakariason, who, by his complaint, set up that he was the owner of certain sheep, described, and that the said defendant, as sheriff of said county, had wrongfully taken possession of such property under a pretended writ of execution issued out of the district court of the same county in a former case, in which the plaintiff was not a party. Issue being joined, and after the introduction of certain evidence, a motion was interposed by the defendant to instruct the jury to find the issues in his favor and assess damages in the sum of $5,000, which it appears was the admitted value of the animals in question. The motion was based upon two grounds: First, because no affidavit, as required by section 4342, Code 1915, in actions of replevin against an officer, had been made by plaintiff; second, because the evidence of the case was not sufficient to warrant a recovery by plaintiff. This motion was granted by the trial court, and the jury brought in a verdict in the sum of $5,000 against plaintiff, from which judgment this appeal is prayed.
Formal defects in the affidavit in actions of replevin must be taken advantage of before pleading to the merits; if not, they will be considered as waived.
M. C. Spicer and J. A. Lowe, both of Socorro, for appellant.
HANNA, C. J. (after stating the facts as above).
[1] 1. The motion of the defendant for a directed verdict was based on two grounds, the first being that there was no replevin affidavit, as required by section 4342 of the Code of 1915, in all actions of replevin against an officer. The statute in question requires an affidavit in addition to the affidavit ordinarily called for in replevin actions, which additional affidavit must recite that the goods and chattels were not seized under any process, execution, or attachment against the property of the plaintiff, and that the defendant in the original process, by virtue of which the property was wrongfully seized by the officer, had no interest, right, or title in said chattels at the time of such wrongful seizure, etc.
This additional affidavit, required by the section of the statute referred to, was not made, so far as the record in this case discloses, although the ordinary affidavit in replevin was filed. This objection would prove to be serious but for the fact that it was not raised in apt time, being first called to the attention of the court in the motion for a directed verdict. The failure to file the additional affidavit is analogous to the filing of an affidavit which is defective in that it does not include all the things necessary to be shown under the statute. It is generally held, with which holding we agree, that formal defects in the affidavit in actions of replevin must be taken advantage of before pleading to the merits; if not, they will be considered as waived. Wells on Replevin, § 657; Smith v. Emerson, 16 Ind. 355; Tripp v. Howe, 45 Vt. 523; Eddy v. Beal, 34 Ind. 159; Baker v. Dubois, 32 Mich. 92.
For the reasons stated, we find no merit in the first objection urged to the action of the trial court in sustaining the motion of the defendant for a directed verdict.
[2] 2. The second ground of the motion for a directed verdict, one which presents the most difficulty, and around which the contest in the trial court largely revolved, was that there was no evidence to warrant a recovery by plaintiff in the trial court, and no evidence to show that he was entitled to the possession of the property in controversy at the time he commenced his action.
It is contended by appellants here that the undisputed evidence of the case shows that James Sakariason, the plaintiff, was in possession of the sheep involved at the time that they were taken into possession by the sheriff under the writ of execution. We cannot agree with this contention of appellants, and do not consider that the conclusion at which we arrive calls for a lengthy discussion of the evidence as disclosed by the record.
It is not disputed, but admitted, that John E. Sakariason was at all times in possession of the sheep. We do not overlook his contention that he claims his possession was the possession of his brother, James Sakariason, whose whereabouts was unknown. The only difficulty presented by appellants' contention arises from the fact that certain proof was offered and rejected by the trial court. The proof tendered consisted of an order of the probate court of Socorro county, calling upon the administrator, John E. Sakariason, to file a report. The report thus called for, which, after making reference to certain disbursements in connection with debts of the estate, recited that James Sakariason, the plaintiff in this case, who was a minor at the time of his father's death, had become of age, and that he, as guardian of the said James Sakariason, was holding an equal share of the estate for him. The introduction of this evidence was objected to in the court below on the ground that the evidence was incompetent; that the administrator was...
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