Wood v. Matter

• Decision Date: 19 December 1902
• Docket Number: Nos. 13,267 - (157).,s. 13,267 - (157).
• Citation: 88 Minn. 123
• Parties: CHARLES L. WOOD v. AUGUST L. MATTER.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

88 Minn. 123

CHARLES L. WOOD v. AUGUST L. MATTER.¹

Nos. 13,267 - (157).

Supreme Court of Minnesota.

December 19, 1902.

Appeal by defendant from a judgment of the district court for Brown county, Webber, J. Affirmed.

Hoidale & Somsen, for appellant.

Albert Pfaender, for respondent.

LOVELY, J.

Action to recover personal property taken under an execution. Plaintiff, a third party to the suit in which the process was issued, demanded its return, and brought suit in claim and delivery for the recovery thereof. The cause was tried to the court and a jury. A verdict was returned in favor of plaintiff. Upon a settled case motion for a new trial was made and denied. Judgment was then entered from which defendant appeals.

The question determined by the verdict is one of fact, and involves solely the possession of the property at the time of the levy. The following facts supporting the verdict may be fairly deduced from the evidence: For several months prior to July 27 one Smith was the lessee and landlord of a hotel at New Ulm. On the morning of that day plaintiff arrived at New Ulm from South Dakota, and, after bargaining for the purchase of the hotel business and furniture, concluded the trade. About four o'clock in the afternoon of that day a bill of sale of the furniture was made out and delivered by Smith to plaintiff, who entered immediately into control of the hotel, and assumed the entire management of its business affairs, while his wife took charge of the help. Supper was provided by the new proprietor, and he collected pay for the only meal served to a guest on that day subsequent to the sale. Smith and his family, consisting of wife, son, and daughter, commenced at once to pack up their personal possessions, and left the city within two days. In the meantime they were the guests of plaintiff. After supper, about seven o'clock, while plaintiff was temporarily absent from the hotel, and while the former proprietor, Smith, occupied his old place in the office behind the desk, defendant, the sheriff of the county, armed with an execution issued upon a judgment in an action against the latter, entered the office for the purpose of collecting the amount due thereon. He had some talk with Smith, and demanded payment of the judgment, which was refused. He then levied upon the furniture which had been sold to plaintiff. Smith informed him after the levy was made that it had been sold, but defendant proceeded with the levy, taking two loads from the building, when plaintiff returned, and immediately presented the bill of sale to defendant, who seemed satisfied, making the remark, "That settles it," and desisted from taking any more property under the process in his hands, but declined to return what he...