Ward v. Wilms

• Decision Date: 21 May 1891
• Parties: WARD et al. v. WILMS.
• Court: Colorado Supreme Court

27 P. 247

16 Colo. 86

WARD et al. v. WILMS.

Supreme Court of Colorado

May 21, 1891

Appeal from district court, Washington county; THOMAS J. ROBINSON Judge.

This was an action by Samantha J. Wilms against Benjamin Ward and his sureties upon his official bond as constable. The complaint charges, in substance, that, by virtue of a certain execution against one F. W. Wilms, the defendant Ward had illegally and forcibly taken possession of a stock of merchandise belonging to plaintiff, and had wrongfully appropriated the same, to her damage, etc.; that said acts were done by Ward under color of his office as constable. The defense relied on was that the merchandise so seized was in fact the property of F. W. Wilms, the defendant in the execution. The trial resulted in a finding and judgment in favor of plaintiff. The defendants appeal.

Syllabus by the Court

1. Whether or not a resident plaintiff shall be required to give security for costs is a matter in the sound discretion of the court.

2. An objection to testimony will not, in general, be considered in a court of review, unless the record shows that the grounds of such objection were fairly presented to the trial court. It is only where the testimony offered is wholly inadmissible for any purpose in the case that a general objection will suffice.

Quitman Brown and Markham &amp Dillon, for appellants.

Stuart Bros. & Andrews, for appellee.

ELLIOTT J., ( after stating the facts as above.)

Whether or not a resident plaintiff shall be required to give security for costs under the act of 1885, (Sess. Laws, 156,) is a matter in the sound discretion of the court. See Knight v. Fisher, 15 Colo. ----, 25 P. 78, and cases there cited.

The remaining assignments of error requiring consideration relate to the admission of testimony in behalf of plaintiff. The plaintiff claimed title to the property in controversy through conveyance from her husband, Frederick W. Wilms. She sought to establish her claim by proof to the effect that, in 1877, her husband was the owner of a certain hotel property in the state of Nebraska, and, being entirely out of debt conveyed the same to her as a gift; that, in 1886, he repurchased the same from plaintiff, giving her his note for $4,000 therefor, and that he then traded the hotel property for the stock of merchandise, and moved the same to this state; that, in 1887, plaintiff being desirous of collecting the note against her husband, and he being unable to pay in money, she took from him a bill of sale of the merchandise in controversy in payment of the note, and that she took immediate and absolute possession of the merchandise thus purchased, and retained open, notorious, exclusive, and continued possession and control thereof, until the same was seized in execution by the defendant constable, for the debt of her husband. In support of her claim plaintiff identified and offered in evidence the $4,000 note, together with certain correspondence between herself and her husband relating to the alleged transaction by which she claimed title to the...