Soper v. Fry
| Decision Date | 21 November 1878 |
| Court | Michigan Supreme Court |
| Parties | George W. Fry v. Daniel E. Soper |
Submitted October 30, 1878
Error to Newaygo.
Trover. Defendant brings error.
Judgment affirmed with costs.
Gray & Luton for plaintiff in error. Plea of the general issue in trover puts in issue the right to the possession of the property at the time of the conversion, Isaac v. Belcher, 7 Dowl. Prac. Cas., 516; Fyson v. Chambers, 9 M. & W., 463; Young v. Cooper, 6 Exch. 259; Mayhew v. Herrick, 7 C. B., 229.
A. G. Day for defendant in error. Evidence that goods were seized under a writ cannot be given without notice, under the plea of the general issue in trover. Comstock v. Hollon, 2 Mich. 355; Miller v. Finley, 26 Mich. 249.
This was an action of trover brought by Soper as assignee of Carter & Minkler, to recover the value of a stock of goods taken from him by the defendant.
On the trial Fry claimed to have taken the goods as deputy sheriff by virtue of a writ of attachment issued out of the circuit court at the suit of John P. Woods against Carter and Minkler as defendants, and farther claimed that the assignment to Soper was fraudulent and void as against the creditors of the assignees, for matters apparent upon the face thereof, and also because of other matters as shown by the testimony on the trial.
The defendant on the trial was in no shape to attack or question the validity of the assignment. It was a matter in which strangers were in no way concerned. Attaching or judgment creditors could question the validity of the assignment, but none others. The plea was the general issue, and there was no notice attached thereto or in connection therewith referring to or justifying the seizure as having been made by virtue of any judicial proceedings. The evidence offered of the proceedings by attachment was clearly inadmissible, and should have been rejected upon the objection made by plaintiff's counsel to their admission. This case must therefore be considered as though no such evidence had been introduced. Rosenbury v. Angell, 6 Mich. 508.
The judgment must therefore be affirmed with costs.
The other Justices concurred.
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Eureka Iron & Steel Works v. Bresnahan
...title to the goods was in himself, either absolutely as general owner, or specially as bailee, or by way of lien. It was held in Fry v. Soper, 39 Mich. 727, and Frankel v. Coots, 41 Mich. 75, 1 N.W. 940, that, in actions of trover for goods taken in attachment against a third person, the of......
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Dawley v. Sherwin
...suit of a creditor of the assignor, and had pursued the statutory steps in relation thereto subsequent to the seizure of the same. Fry v. Soper, 39 Mich. 727; Bump, Fraud. Cony. 460-464, inclusive, and cases there Although the numerous rulings of the court in rejecting appellant’s evidence ......
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Hine v. Commercial Bank of Bay City
...the attachment suits against Theodore Hine. As no notice was given with the plea of the general issue, this was properly refused. Fry v. Soper, 39 Mich. 727; Frankel Coots, 41 Mich. 75, 1 N.W. 940; Steel Works v. Bresnahan, 66 Mich. 489, 33 N.W. 834. In his charge to the jury, the court mad......
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McLaughlin v. Smith
...case, perhaps immaterial. The court excluded the defence because notice thereof was not given, with the plea of the general issue. Fry v. Sloper, 39 Mich. 727. I there is no injustice in requiring notice of such a defence to be given. It affords to the plaintiff an opportunity to make an ex......