Slattery v. Donnelly

• Citation: 47 N.W. 375,1 N.D. 264
• Decision Date: 29 November 1890
• Court: North Dakota Supreme Court

47 N.W. 375

1 N.D. 264

MARY SLATTERY, an Infant, by MICHAEL P. SLATTERY, her Guardian, Plaintiff and Appellant, v. FRANK DONNELLY, Defendant and Respondent

Supreme Court of North Dakota

November 29, 1890

APPEAL from district court, Burleigh county; Hon. WILLIAM H FRANCIS, Judge.

Judgment reversed, and a new trial granted.

Louis Hanitch, for appellant;

George W. Newton, for respondent.

OPINION

WALLIN, J.

This action was brought to recover damages for the conversion of a certain piano, which plaintiff alleges she owned at the time the same was seized and converted by the defendant. The seizure was sought to be justified by the defendant on the ground that it was made by defendant, as sheriff, under final process against Michael P. Slattery, the father of the plaintiff. The ownership of the piano was the sole issue. The case was tried to a jury, and, at the close of the plaintiff's case, defendant moved the trial court to direct a verdict in his favor on the ground that the facts proved failed to establish a cause of action against the defendant, and that there is no proof of the delivery of the property by the father to the plaintiff. The motion was granted, to which ruling the plaintiff duly excepted. A bill of exceptions embracing the evidence and the rulings of the trial court was settled, and a motion for a new trial was denied. The ruling directing a verdict, and the ruling denying plaintiff's motion for a new trial, are assigned as error in this court. The testimony tends to show the following state of facts: In the year 1881, and ever since Michael P. Slattery resided with his family at the city of Bismarck; that his family consisted of a wife and several children; that one of his children was Mary Slattery, the plaintiff herein; that he owned the house in which he resided; that in November of that year Michael P. Slattery went to Ireland on a visit, and there received from his father, for the education of his children, and especially for his daughter Mary, (the plaintiff,) the sum of $ 500; that he returned from Ireland to Bismarck, and, some time in May 1882, began to negotiate for the purchase of the piano in question; that he informed the plaintiff that he would purchase said piano for her, and did purchase the same for her in August or September, 1882; that his daughter, the plaintiff, was home when the piano was delivered at the house; that the father informed the plaintiff that...