Schilling v. Curran
| Decision Date | 16 May 1904 |
| Parties | SCHILLING v. CURRAN, Sheriff (RYMAN, Intervener). |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Missoula County; F. C Webster, Judge.
Action by E. W. Schilling against D. T. Curran, as sheriff of Missoula county; J. H. T. Ryman, trustee in bankruptcy intervener. From a judgment for plaintiff, and from orders denying a new trial, defendant and intervener separately appeal. Affirmed.
A. L Duncan, Nolan & Loeb, Jos. M. Dixon, and Frank Woody, for appellants.
Joyce & Mulroney, Hall & Patterson, S. G. Murray, and Chas. H. Hall, for respondent.
Respondent claims that he purchased certain personal property, goods, wares, and merchandise from the firm of Pulley & Ludwick on June 2, 1900, for $950 cash, and took possession of the same; that on June 4, 1900, appellant Curran, as sheriff of Missoula county, levied upon and took into his possession all of said property. On June 21, 1900, respondent brought suit against the sheriff to recover the possession of said personal property. It appears from the answer of the sheriff that on July 18, 1900, Pulley & Ludwick were, upon the application of some of their creditors, declared bankrupt by the United States District Court for the District of Montana; that on the 8th day of August, 1900, one J. H. T. Ryman was duly appointed trustee in bankruptcy of th estate of Pulley & Ludwick, and qualified as such; that soon thereafter he demanded of the sheriff all of the personal property, goods, wares, and merchandise which he had taken from plaintiff; that the sheriff complied with this demand early in September, 1900; that a writ of attachment was issued against the property of Pulley & Ludwick, in a suit instituted against them by the Western Montana National Bank of Missoula, to recover the sum of $1,099.68, exclusive of interest. Curran, the sheriff, claimed justification for the seizure of the goods by virtue of a levy thereon under such writ of attachment as the property of Pulley & Ludwick. To this answer respondent filed a reply on April 13, 1901, admitting the allegation that Pulley & Ludwick were partners, and denying all the other allegations. On March 22, 1901, Ryman, as trustee in bankruptcy, by leave of the lower court, filed his complaint in intervention in this suit; claiming, as such trustee, all the property seized by the sheriff, as above stated. On September 11, 1901, respondent filed his answer to this complaint of intervention; denying practically all the allegations thereof, except that Pulley & Ludwick were partners. The case was tried upon these pleadings by the court without a jury, and resulted in a judgment in favor of respondent against Curran, the sheriff, for $247.55 damages for detention of the property, $47.60 costs, and return of the property, and, in case return could not be had, the sum of $1,805.55, the value thereof.
The court, prior to the entry of this judgment, made and filed 13 findings of fact, and 4 conclusions of law, which findings, in substance, in so far as they are important upon these appeals, are as follows: (1) That Pulley & Ludwick were partners in the mercantile business at Missoula on the 2d day of June, 1900. (2) That on that day respondent purchased of said Pulley & Ludwick the merchandise for which he brought suit. (3) That he took possession of the same. (4) That he also purchased some store fixtures, and took possession of the same. (5) That this property so purchased by him, together with some property of his own, was of the value of $1,805.55. (6) That on June 4, 1900, the sheriff attached, and took from the possession of the respondent, all such property. (7) That the writ of attachment under which the sheriff acted was directed against the property of Pulley & Ludwick, and not against the property of respondent. (8) That upon the 18th day of July, 1900, Pulley & Ludwick were adjudged bankrupts, and that on August 8, 1900, Ryman was appointed as trustee in bankruptcy, and duly qualified as such. (9) That, as such trustee, Ryman demanded of the sheriff the merchandise so taken from respondent, which was thereupon delivered to said trustee, and that thereafter the trustee filed his complaint in intervention, claiming the property in the suit to be the property of the bankrupt estate. (10) That the property seized by appellant was not the property of the bankrupt estate of the firm of Pulley & Ludwick, but was the property of respondent. (11) That respondent and Pulley & Ludwick at the time of the sale stood on equal footing, and no confidential relations existed between them. (12) That the purchase by respondent was made in good faith, and without any intent to hinder, delay, or defraud the creditors of Pulley & Ludwick, or any of them. (13) That respondent purchased the said merchandise and personal property in good faith, paying therefor in cash the sum of $950.
The conclusions of law based upon these findings of fact were: (1) That the respondent herein was the owner of all the property taken by the defendant (appellant) under the writ of attachment against Pulley & Ludwick, and was entitled to have the property returned to him, or, in the event it could not be returned, to receive the sum of $1,805.55, with interest thereon from the 4th day of June, 1900. (2) That the court has jurisdiction to entertain an action or defense by a trustee in bankruptcy, and that a trustee in bankruptcy has the legal right to file his complaint in intervention. (3) That respondent was a bona fide purchaser in good faith, for a present fair consideration, of the stock of merchandise and personal property purchased of said firm of Pulley & Ludwick. (4) That the costs of the action should be paid by defendant.
After these findings and conclusions were filed, defendant, Curran, and intervener, Ryman, jointly filed exceptions to certain thereof. They also filed requests for further findings of fact, which are hereinafter quoted. These exceptions were only directed to the sufficiency of the evidence to support the findings. The court thereafter overruled the exceptions, and refused to make the further findings requested. No findings were requested by either party at the time of the argument and submission of the case. Defendant, Curran, and the intervener each made separate motions for a new trial, which were denied, and each appealed from the order denying them. They also separately appealed from the judgment, and filed in this court separate records and briefs upon such appeals. The appeals are numbered 1,836 and 1,837. The cases were argued and submitted together, and will be decided together; following the practice in Murray v. Polglase, 23 Mont. 401, 59 pac. 439.
Counsel for respondent objects to a consideration of the questions sought to be raised as to the insufficiency of the evidence to sustain the findings, because the record does not disclose that it contains all the evidence. It is very questionable, under the decisions of this court in the case of State v. Shepphard, 23 Mont. 323, 58 P. 868, and subsequent cases, as to whether this objection is not well taken; but, inasmuch as the statement and record must, for other reasons, be disregarded in so far as the insufficiency of the evidence is concerned, we have not considered, and do not pass upon, this question.
Section 1173, Code Civ. Proc., provides: The statements on motion for new trial do not contain any specifications of the insufficiency of the evidence, as required under the above section. We find however, in such statements, the following: Counsel then recite the evidence bearing upon finding No. 2. The second, third, fourth, and fifth points urged are identical with the language above quoted. No one of these can possibly be construed into a specification of the insufficiency of the evidence. Insufficiency of the evidence is an error of fact. Here the errors were attempted to be charged as errors of law. Practically the same specifications are found in the record in the case of Bardwell v. Anderson, 18 Mont. 528, 46 P. 443, and they were held to be insufficient. The same doctrine is held under statutes similar to ours in the following cases: Smith v. Christian, 47 Cal. 18; Cunnington v. Scott, 4 Utah, 446, 11 P. 578; State of Utah v. Spencer, 15 Utah, 149, 49 P. 302; Heilbron v. Irrigation Ditch Co., 76 Cal. 8, 17 P. 932. The notices of intention to move for new trial, contained in the record, base the motions for new trial upon the ground of insufficiency of the evidence to support findings Nos. 2, 10, 11, 12, and 13, and do not allege any error at law on the part of the court in making these findings. Counsel cannot change his position, and now claim that the making of these findings is an error at law. Under Bardwell v. Anderson, supra, such specifications are also insufficient to charge errors of law. Under section 1173, supra, the court below...
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