Whittaker v. Voorhees

• Decision Date: 10 December 1887
• Parties: HENRY L. WHITTAKER v. D. R. VOORHEES, as Sheriff of Nemaha County
• Court: Kansas Supreme Court

15 P. 874

38 Kan. 71

HENRY L. WHITTAKER v. D. R. VOORHEES, as Sheriff of Nemaha County

Supreme Court of Kansas

December 10, 1887

Error from Nemaha District Court.

ACTION brought by Whittaker against Voorhees, as sheriff of Nemaha county, to recover damages for the alleged wrongful taking and conversion of a stock of goods. At the April Term, 1885 the defendant recovered a judgment. The plaintiff brings the case here. The opinion states the facts.

Judgment affirmed.

W. W Guthrie, and B. P. Waggener, for plaintiff in error.

Conwell & Wells, J. E. Taylor, Smith & Solomon, and Frank Royse, for defendant in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

From some time in 1882 up to January, 1884, O. O. Marbourg was engaged in the hardware business at Sabetha, Kansas, and at that time had a large stock of hardware and agricultural implements. The plaintiff and W. W. Marbourg, a brother of O. O. Marbourg, resided at Atchison, Kansas. On January 3, 1884, O. O. Marbourg executed four chattel mortgages on his several stocks of goods to his brother, W. W. Marbourg, who took immediate possession of said mortgaged property; and the next day he sold the entire stock of goods in bulk, without invoice, to the plaintiff, for the alleged consideration of $ 21,000 -- $ 1,000 alleged to have been paid in cash, and four promissory notes for $ 5,000 each -- and plaintiff took immediate possession. At the time of the transfer of the goods by O. O. Marbourg to his brother, he was largely indebted to different parties for goods purchased of them, being part of the stock in question. On the 4th day of January, 1884, and on each succeeding day up to the 12th, suits were commenced by attachment by said creditors against O. O. Marbourg, and the goods in question were attached by defendant, as sheriff of said county, the attachments aggregating $ 17,000. No redelivery bond was given. On the 12th of January this action was brought by plaintiff Whittaker against defendant, as sheriff, for the value of the goods. In answer to the plaintiff's action the defendant alleged the indebtedness of O. O. Marbourg, the fraudulent mortgage and transfer by him to W. W. Marbourg, his brother, the fraudulent sale thereunder by W. W. Marbourg to the plaintiff, and that said transfer was made for the purpose of defrauding the said creditors of O. O. Marbourg.

The first complaint made by the plaintiff in error is as to the suppression of a deposition of W. S. Moorehouse, taken by plaintiff in error. The record shows that this deposition was suppressed upon two grounds: First, that the indorsement on the envelope was not according to law; and second, that the certificate of the officer taking the deposition did not show that it was taken at the time and place set forth in the notice served upon the defendant. The indorsement on the envelope is as follows: "Henry L. Whittaker, plaintiff, v. D. R. Voorhees, defendant, sheriff, &c. Depositions taken by me, John E. Garland, notary public, Dakota. To J. H. Gleason, clerk of the district court of Nemaha county, at Seneca, Kansas." This deposition was suppressed upon the claim of the defendant that the title of the case was not set out in this indorsement. The statute requires that the envelope containing a deposition shall be indorsed with the title of the cause, and the name of the officer taking the same, and shall be by him transmitted to the clerk of the court where the action is pending. We think this indorsement was sufficient. It stated the name of the plaintiff and the name of the defendant, and was addressed to the clerk of the district court of Nemaha county, where the cause was pending. While in strict terms the title of a cause includes the title of the court where the cause is pending, yet where the deposition is directed to the clerk of the proper court, and is otherwise sealed up, indorsed, and transmitted in due form, the failure to state the title of the court more fully by indorsement is not sufficient ground for suppressing the deposition.

Second, the notice provided for the taking of this deposition at the storehouse of W. S. Moorehouse, in the city of Bismarck, in the county of Burleigh, territory of Dakota, between the hours of 8 o'clock A. M. and 6 P. M. of said day. The certificate to the deposition is as follows:

"I, John E. Garland, a notary public within and for the said county and territory, do hereby certify that the above-named W. S. Moorehouse, the witness whose name is subscribed to the foregoing deposition, was by me first duly sworn to testify the truth, the whole truth, and nothing but the truth, in the cause aforesaid, and that the deposition by him subscribed was reduced to writing by me, and that the said deposition was so reduced to writing and subscribed by said witness in my presence, and the same was taken on the 13th day of April, 1885, at the store of W. S. Moorehouse, in Bismarck, Dakota territory, as specified in the notice hereto attached; and that I am not a relative or attorney of the parties, or otherwise interested in the event of the action.

JOHN E. GARLAND, Notary Public."

Now the defendant insists that this certificate does not show that it was taken within the county of Burleigh, on the said 13th day, between the hours of 8 and 6 o'clock, at the storehouse of Moorehouse. We think this objection is technical only. The caption to the certificate shows the territory of Dakota, county of Burleigh. The certificate states that it was taken on the 13th day of April, at the store of W. S. Moorehouse, in Bismarck, Dakota territory, as specified in the notice. We think this is a sufficient description of the place and of the time. The notice states the time and place where the deposition was to be taken, and the officer certifies that it was taken at the time and place specified in the notice. The time mentioned not only means the day, but within the proper hours of that day. There was no showing made that the defendant had attended at the place named in the notice, or that the deposition was not taken as specified therein. All of the presumptions are in favor of the officer, that he did his duty. We think the court erred in sustaining the motion to suppress this deposition.

This brings us to the next question presented by this deposition that is, Was the evidence contained in said deposition material, and for that reason does it require a reversal of this judgment? One of the claims made by W. W. Marbourg was, that the mortgage executed by his brother to him was to secure him (W. W. Marbourg) for money advanced, and for notes that he held against O. O. Marbourg. To establish this claim was the purpose in taking this deposition. It seems from the evidence that this witness, Moorehouse, had formerly been in ...