Servel v. Corbett

• Decision Date: 08 July 1930
• Docket Number: 5468
• Citation: 49 Idaho 536,290 P. 200
• Parties: PHILOMENF SERVEL, Administratrix of the Estate of PIERRE SERVEL, Deceased, v. HENRY L. CORBETT and FRANK M. BRESHEARS, United States Marshal for the District of Idaho, Respondents, and PHILOMENE SERVEL, Appellant, and ISAAC MCDOUGALL, Trustee in Bankruptcy of the Estate of XAVIER SERVEL, Bankrupt, Respondent
• Court: Idaho Supreme Court

290 P. 200

49 Idaho 536

PHILOMENF SERVEL, Administratrix of the Estate of PIERRE SERVEL, Deceased, and PHILOMENE SERVEL, Appellant, v. HENRY L. CORBETT and FRANK M. BRESHEARS, United States Marshal for the District of Idaho, Respondents, and ISAAC MCDOUGALL, Trustee in Bankruptcy of the Estate of XAVIER SERVEL, Bankrupt, Respondent

No. 5468

Supreme Court of Idaho

July 8, 1930

APPEAL AND ERROR-SPECIFICATION OF ERROR, AMENDMENT OF-DIRECTED VERDICT-RECORD ON APPEAL-EVIDENCE-OWNERSHIP-ANIMALS-BRANDS-IMPROPER OBJECTION-CORRECT RULING-UNRECORDED BILL OF SALE-ADMISSIBILITY OF-CONFUSION OF GOODS-IDENTITY-BURDEN OF PROOF.

1. Practice of amending specifications of error after appeal has been perfected and before argument should not be encouraged.

2. Where judgment is entered upon directed verdict, transcript as settled according to statute, becomes record on appeal without other papers (C. S., secs. 6879, 7163).

3. Where issue was title to cattle, plaintiff's testimony that she owned cattle held properly excluded as legal conclusion.

4. Statement or testimony that one owns specific property may sometimes be treated as ultimate fact, but not where issue is such ownership.

5. Parol evidence of brand upon animal is admissible for identification without first establishing ownership of brand but not to prove ownership.

6. Exclusion of testimony of brand upon animal without first establishing ownership of brand held not prejudicial error absent clear offer of proof that purpose was only to prove distinguishing mark.

7. Statutory provision rendering incompetent oral communication with deceased person applies only in action against personal representative of deceased (C. S., sec. 7936).

8. Testimony as to understanding between brothers with reference to cattle branded in certain way held inadmissible as attempt to prove ownership by brand not established (C. S., sec 1920).

9. Absent proper offer of proof, proper rejection of testimony, although on wrong ground, held not prejudicial (C. S., secs. 1920, 7936).

10. Where witness purchased cattle with brother's money, his subsequent conversation with brother's wife relating to transaction held inadmissible to show nature of transaction.

11. Unrecorded bill of sale reciting sale of cattle held not to comply with statute so as to effect range delivery (C. S., sec. 1929).

12. Unrecorded bill of sale of cattle, not accompanied by change of possession, is void as to creditors of grantor (C. S., sec. 5434).

13. Unrecorded bill of sale of cattle, not accompanied by change of possession, held inadmissible in evidence (C. S., secs. 1929, 5434).

14. "Shipped them," in answer to "What became of cattle?" held properly struck as evasive and meaningless, absent offer of proof, where question was identity of cattle sold at judicial sale.

15. Letter and tax statement as impeaching or contradicting testimony of plaintiff held not admissible because not statement of plaintiff or her witnesses, nor acquiesced in by plaintiff.

16. Contradictory or impeaching testimony cannot be considered by trial court or on appeal in ruling on motion for directed verdict.

17. Directed verdict has same effect as order granting motion for nonsuit, in that it admits truth of adversary's evidence and every inference of fact that may be legitimately drawn therefrom.

18. Rule that directed verdict admits truth of adversary's evidence and every inference of fact legitimately drawn therefrom must be applied in light of other facts established by record beyond controversy.

19. Fact that cattle were cared for and fed by plaintiff's employees held evidence of substantial claim against real owner, but not of ownership.

20. Burden held on person claiming ownership to identify commingled cattle or prove right to certain number of those commingled.

21. Testimony held not to sustain burden of proof of ownership of commingled cattle.

22. Evidence of ownership of commingled cattle held not sufficient to sustain verdict or judgment in plaintiff's favor.

23. Where evidence is insufficient to sustain verdict or judgment in favor of plaintiff in action for conversion of cattle, court had to direct verdict for defendant.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. R. M. Terrell, Judge.

Action to recover damages for alleged conversion of cattle. Judgment for intervenor, trustee. Affirmed.

Judgment affirmed, with costs to respondents.

Merrill & Merrill, for Appellant.

"A motion for a directed verdict admits the truth of all the evidence in favor of the adverse party and every inference of fact that may legitimately be drawn therefrom, and should be denied unless there is no substantial evidence whatever on any question of fact about which reasonable minds might differ, which, if found in favor of the adverse party, would support a verdict for him." (McCornick & Co. v. Tolmie Bros., 42 Idaho 1, 243 P. 355.)

"A directed verdict is not authorized where there is a conflict in the evidence of a substantial kind. A bare conflict created by what is sometimes termed a 'scintilla' of evidence, is not substantial within the interpretation of the decisions. The rule is precisely the same as that applied where a motion for judgment of nonsuit is under consideration. On such a motion it must appear that the evidence utterly fails as to essentials necessary to be proved before an order granting the same will be allowed to stand." (Sweetland v. Oakley State Bank, 40 Idaho 726, 236 P. 538.)

Bissell & Bird, for Respondents.

As appears from folios 172 et seq. of the record, this case was disposed of upon motion for directed verdict. Under such circumstances the record on appeal should contain an order of the trial judge in conformity with Rule 21 of the rules of this court. In effect, this rule requires the trial judge to certify as to the papers submitted to him upon any contested motion. This has not been done in this case, and the appeal is subject to dismissal. There are a number of cases upon this point, the more recent ones being Brooks v. Lewiston Business College, 48 Idaho 71, 282 P. 378, and Hampton v. Lee, 49 Idaho 22, 287 P. 205. The substance of these decisions and the authorities therein referred to is that, in the absence of such a certificate, the appellate court has no jurisdiction of the appeal and the same is subject to dismissal. This being a jurisdictional question, it is immaterial that the motion is made after the cause has been submitted.

The provisions of said Rule 21 are broad and include "all contested motions."

Assignment that the trial court erred in directing verdict, "as the evidence clearly establish (es) a prima facie case for the plaintiffs," is not sufficiently specific to entitle appellants to a review by the appellate court. (Rules Supreme Court, Rule 40; Bain v. Olsen, 39 Idaho 170, 226 P. 668; Hill v. Porter, 38 Idaho 574, 223 P. 538; Morton R. Co. v. Big Bend etc. Co., 37 Idaho 311, 218 P. 433.)

Where there is no substantial evidence supporting plaintiff's case a directed verdict must be upheld: (McCornick & Co. v. Tolmie Bros., 42 Idaho 1, 243 P. 355; Sweetland v. Oakley State Bank, 40 Idaho 726, 236 P. 538.)

The statement of witnesses that one owns or does not own cattle is not evidence, but rather an opinion or conclusion. (22 C. J. 634; Simpson v. Smith, 27 Kan. 565-571.)

If testimony is properly excluded hy the trial court it is immaterial on what ground the exclusion was placed. ( Carega v. Moore, 70 Cal.App. 614, 234 P. 121.)

The claimed sale from Xavier Servel to Philomene Servel was void, because not accompanied by delivery or followed by change of possession. (C. S., sec. 5434; Sweetland v. Oakley State Bank, supra.)

MCNAUGHTON, J. Givens, C. J., and Budge, Lee and Varian, JJ., concur.

OPINION

MCNAUGHTON, J.

This is an action for damages growing out of the alleged conversion of 267 head of cattle, claimed to have been the property of the plaintiff at the time they were sold by the United States marshal in satisfaction of a judgment against Xavier Servel, brother of the plaintiff's deceased husband. At the trial the court directed a verdict for the defendant upon which judgment was entered. The appeal is from that judgment.

There are two preliminary motions. The appellant, before argument, moved to file an amendment to her specifications of error, thereby pointing out more in detail wherein the evidence introduced upon the trial was sufficient and of such nature in point of raising fact issues as to require the submission of the case to the jury. This practice should not be encouraged. However, the case is such that the entire record must be carefully examined and the points raised by the original assignments will be considered with the aid of the amendment.

The respondent, after submitting the case on argument, moves to dismiss on the ground that the appeal is in effect an appeal from a final order which is reviewable only upon the papers required by C. S., sec. 7163. We cannot take this view. Where a judgment is entered upon a directed verdict the transcript, as settled in this case, becomes the record on appeal. (C. S., secs. 6879, 7163.)

The record discloses that prior to 1925, Pierre Servel, the deceased husband of the appellant, and his brother, Xavier Servel, were extensively engaged in the livestock business. They were not partners but there was a family relation between them extending into business matters. In this business they pastured the same range. They used the same branding iron. Their banking accounts were individual and separate, but used one by the other. At least Xavier Servel was permitted and did use large sums of Pierre's money by Pierre's permission to buy cattle branded in the fashion...