State ex rel. Farwell v. Leland

• Decision Date: 30 April 1884
• Citation: 82 Mo. 260
• Parties: THE STATE ex rel. FARWELL et al. v. LELAND et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 260

THE STATE ex rel. FARWELL et al.

v.LELAND et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Saline Circuit Court.--HON. J. P. STROTHER, Judge.

AFFIRMED.

A. J. Herndon and S. C. Major for appellants.

Reasonable diligence is a mixed question of law and fact, and the jury, in order to pass upon the same properly, should have all the facts and circumstances of the case before them. It was, therefore, error to exclude the evidence sought to be elicited from the defendant and his deputy. The court erred in refusing to give defendants' instructions. R. S. 1879, § 2338; Kirkland v. Ferguson, 13 Mo. 166. The instructions given for plaintiff, and by the court of its own motion, were misleading.

Draffen & Williams and R. C. Clark for respondents.

The court properly refused to permit the defendant and one of his deputies to state in what business they were engaged during the time the execution was unexecuted in their hands. Elmore v. Hill, 46 Wis. 618; Redway v. Chapman, 48 Mo. 218; Campbell v. Luttrell, 13 Mo. 27. Defendants' third instruction was properly refused. Douglass v. Baker, 9 Mo. 41; Herman on Executions, §§ 407, 410; 2 Hilliard on Torts, p. 191. State ex rel. Kirkland v. Ferguson, 13 Mo. 166, does not sustain appellant. Where a debtor is absent and cannot be notified, the sheriff must levy on all the property not specifically exempt, and permit the debtor to make his selection afterwards. Herman on Executions, § 151; People v. Palmer, 46 Ill. 398; State ex rel. v. Emmerson, 74 Mo. 607. It is unnecessary for plaintiff to point out the property to the officer, or to give any special directions in regard thereto. State ex rel. v. Ownby, 48 Mo. 71. The instructions were more favorable to the defendants than they had a right to ask. The court should have declared as a matter of law, that the undisputed facts showed that the officer was guilty of negligence. Hearn v. Parker, 7 Jones 150; Elmore v. Hill, 46 Wis. 618.

EWING, C.

The plaintiffs in this suit sued J. W. Chilton, in November, 1877, in the circuit court of Howard county on a note and recovered judgment for $240.79. Sued out execution December 15, 1877, and on that day placed it in the hands of the defendant, Leland, sheriff of Howard county. It was returned the first Monday in April, 1878. On the same day another execution in favor of other parties and against Chilton was put into Leland's hands. Before Leland levied, the defendant in the execution, Chilton, made an assignment and Leland returned the execution nulla bona. Thereupon the plaintiffs sued Leland on his official bond for failure to levy, the other defendants being securities on his bond. Upon the trial in the Saline circuit court, where the case had been taken by change of venue, the plaintiffs read in evidence the judgment and execution against Chilton, and Leland's memorandum thereon that it was received December 15, 1877, and his return thereon, dated December 22, 1877. There was some objection to this judgment and execution, but the objection seems to have been abandoned here as no notice is taken of it. Plaintiffs then offered evidence which tended to show that J. W. Chilton was an old citizen of Howard county, who had been merchandising at New Franklin in said county for twenty years or over; that between the 15th of December and the 21st thereof, 1877, Chilton had in his storehouse from $3,500 to $4,000 worth of goods, and carrying on his business as usual; that the defendant, Leland, was familiar with these facts and was frequently at New Franklin and at Chilton's store; that during the time mentioned Chilton had $12,000 or $15,000 worth of notes and accounts due him. That Leland did nothing towards making a levy under the execution until the 21st of December, 1877, when his deputy, Boyd McCrary, went from Fayette, the county seat, to New Franklin, a distance of eleven miles, went to the store and enquired for Chilton, was told that he had gone to Boonville, two or three miles off across the river, into another county; that, after dinner, McCrary went to Boonville in search of Chilton, whom he found intoxicated to such a degree as to render him incapable of transacting business; that McCrary remained all night in the neighborhood and at five o'clock next morning called on Chilton; told him his business for the first time and was then told by Chilton that he had made an assignment the day before, about noon. This was the plaintiffs' evidence.

The defendant offered evidence tending to show that the sheriff received no instructions when he got the execution, and had no intimation from any source that Chilton contemplated making an assignment until he was told so by Chilton on the 22d day of December, 1877. That the December term of the circuit court of Howard county adjourned finally on December 14, 1877. Defendants then asked witness, Boyd McCrary, the deputy sheriff, “where were you and in what business engaged from the time you received the execution up to the time you went to Franklin?” To this question plaintiff objected on the ground that it was immaterial, which objection the court sustainad. Defendant then introduced the defendant, Leland, and asked him the following questions: “In what business were you engaged on Monday, Tuesday, Wednesday and Thursday, December 17, 18, 19, 20, 1877?” To which question plaintiffs objected on the ground that it was immaterial. “Had you in your hands during the time above mentioned any other executions against other parties?” Objected to by plaintiffs, which objection the court sustained. Defendants then offered to prove the time of the opening and adjournment of the Howard circuit court for the December, 1877, term thereof, also same of the Howard county court for its December, 1877, adjourned term, which evidence was objected to by plaintiffs as immaterial; said objection was sustained by the court.

I. The main reliance of the appellant for a reversal of the judgment is the alleged error of the court below in refusing to allow the witnesses, McCrary and Leland, to answer the questions asked as set forth above. The rule seems to be that where a party desires to offer evidence which is objected to, the bill of exceptions must clearly show what the party offering it expects to prove, so that the appellate court may be able to judge of its admissibility and materiality; or the question must be such as will clearly indicate what the answer will be, or what the party desires to prove. Otherwise, as is well said in Jackson v. Hardin, decided at this term by Philips, C., “The case might be reversed on the naked refusal to permit an answer to this question, and on retrial it might appear that the matter elicited was wholly immaterial and incompetent.” The same doctrine is announced in Aull Savings Bank v. Aull, 80 Mo. 199. The question might be preliminary to other and further evidence, but how can this court judge what the answer is to be or lead to, unless the purpose is disclosed? The question asked might seem to be pertinent to the issue, but the answer be altogether impertinent. The first question asked the witness, McCrary, was: “Where were you and in what business engaged from the time you received the execution up to the time you went to Franklin?” How is this court to determine in what direction the answer would lead? But, if we presume that the witness would have answered that he had other executions in his hands or was engaged in other business of his office, unless that answer was sufficient to excuse him for failure to levy, then we must further presume that it would have been followed up with other pertinent and material evidence. This could not be done. Before this court can pass upon errors alleged they must be made manifest. The error must appear. The court cannot presume it. The same objection exists as to the questions asked Leland, himself. It is not shown what the evidence or answer would have been and in the absence of such showing this court has nothing to act upon. We can well conceive how the defendants might have shown an excuse for failure to levy if the facts existed, but the questions are not so before this court as will make them available.

II. On the other hand, admit that the questions were in such form as to disclose the materiality of the evidence. Jackson v. Hardin, supra. The answers to the questions propounded would not, of themselves, have been sufficient to reverse the case; because the answers responsive to these questions could not have fully established an excuse or reason sufficient to protect the defendant in failing to levy. The answer might have led to other questions and answers and facts material to the issue, but which ...