Tyler v. Hanscom

• Citation: 28 Minn. 1
• Parties: GEORGE W. TYLER <I>vs.</I> AMASA B. HANSCOM and others.
• Decision Date: 05 May 1881
• Court: Minnesota Supreme Court

Page 1

28 Minn. 1

GEORGE W. TYLER vs. AMASA B. HANSCOM and others.

Supreme Court of Minnesota.

May 5, 1881.

Action for the conversion of a frame building. The plaintiff, in his complaint, alleges that on and prior to July 29, 1878, plaintiff was owner and entitled to the immediate possession of a frame building, situate on certain described lots in the village of Willmar, in Kandiyohi

county and of the value of $600. That prior to July 29, 1878, the defendants Hanscom & Mountain caused to be issued a pretended execution against one Henry Hayes, on a pretended judgment against him in their favor, and delivered such execution to the defendant Quist, sheriff of the county, and directed him to levy upon and take the building, though well knowing it to be the plaintiff's property. That on July 29, 1878, the defendant Quist, by virtue of the pretended execution and by direction of Hanscom & Mountain, wrongfully and unlawfully levied on and took the building. That on August 8, 1878, the plaintiff caused to be served on Quist a notice of the ownership of the building and a demand for its surrender, with which demand Quist has ever refused and still refuses to comply; and that on August 10, 1878, Quist, by direction of Hanscom & Mountain, (all of them knowing the building to be plaintiff's property,) wrongfully and unlawfully exposed for sale and sold the building, and converted it to the defendant's own use, to plaintiff's damage in the sum of $600, for which sum judgment is demanded. The defendants pleaded and justified under the judgment, execution and levy complained of.

At the trial in the district court for Kandiyohi county, before Macdonald, J., (acting for the judge of the 12th district,) the plaintiff had a verdict for $255.10; a new trial was refused, and the defendants appealed.

Campbell, Spooner & Julian, for appellants.

Jenness & Ransom, for respondent.

CLARK, J.^*

The complaint in this action contains all the requisite allegations to make out a cause of action, for the taking by the defendants, and conversion to their own use, of a frame building, the personal property of the plaintiff. The answer admits the taking of the building, and alleges that it was then the property of one Hayes, and justifies the taking under and by virtue of an execution in the hands of the defendant Quist, as sheriff of Kandiyohi county, issued on a judgment recovered in a justice's court, by the defendants Hanscom & Mountain against said Hayes, and alleges that the building was duly advertised and sold to satisfy such judgment. The case was tried by a jury, and a verdict rendered for the plaintiff. The defendants moved, upon a statement of the case, for a new trial, which was denied, and the case is brought to this court by appeal from the order denying such motion. When the plaintiff rested his case, the defendants moved the court to dismiss the action, on the ground that the plaintiff had failed to make out a cause of action, which motion was denied, and the defendant excepted.

It appeared from the evidence that the defendant Quist, on the 29th day of July, 1878, as sheriff, levied upon the building, under and by virtue of the execution described in the answer, as the property of Hayes, and, on the 10th day of August, 1878, sold the same to satisfy the judgment; but no evidence was introduced of the service by the plaintiff of any affidavit setting up his title and claim to the building, in accordance with the requirements of Gen. St. 1878, c. 66, § 154. The defendants urge that the service of such affidavit was necessary to the maintenance of the action.

In Barry v. McGrade, 14 Minn. 163, it was decided...