MR. JUSTICE SMITH
delivered the opinion of the court.
This is an action in conversion, to recover of Quinn, a sheriff, and his official sureties, damages for the alleged wrongful seizure of the stock and fixtures in a certain meat market in Butte. Plaintiff alleges that the property taken was of the value of $1,500, and that the entire damages suffered by him are $1,800.
[454]*454The defendants answered that the property was taken by virtue of a writ of attachment against one Fay, and that plaintiff was neither the owner nor in possession thereof at the time of taking. As an affirmative defense the defendants allege that before the commencement of this ease the plaintiff had split his cause of action by beginning an action in claim and delivery before a justice of the peace for one horse, wagon, and harness, which property was a part of that taken by the sheriff under his writ at the same time and as’ a part of the same act or transaction complained of by the plaintiff. The allegation is that Gehlert had judgment before said justice of the peace, and an appeal was had to, and is now pending in, the district court.
By way of reply the plaintiff set forth that the writ of attachment under which justification was attempted was void, because it was issued prior to the issuance of the summons in the case against Fay; it having been issued on November 2. 1905, and the summons on the following day. Plaintiff also denies that he has split his cause of action, and denies that the horse, wagon, and harness were taken with the property mentioned in the complaint or as a part of the same transaction.
The cause was tried before the district court of Silver Bow county, sitting with a jury. A general verdict for $1,500 in favor of the plaintiff was rendered, and in answer to a special question the jury found the actual market value of the property taken to be $957. From a judgment on the general'verdict, and an order denying a new trial of the issues, the defendants have appealed to this court.
The first error assigned is based upon the refusal of the court to direct a verdict for the defendants, for the reason that the new matter in the answer was not put in issue by the reply. We have been somewhat at a loss to follow the idea attempted to be conveyed by this reply, especially in view of the fact that the sheriff’s return to the writ of attachment shows that the horse, wagon, and harness were taken from him in an action brought, not by the plaintiff, but by Fay. However; we do find therein a denial that the property was all taken at the same time and [455]*455as a part of the same transaction. But the evidence leaves no question that the plaintiff has split his cause of action, so that it becomes necessary to inquire whether he had the right to do so.
It appears that, prior to filing complaint in the justice of the peace court against him, the sheriff had disposed of the greater part of the property described in the complaint in this cause. In the case of Huffman v. Knight, 36 Or. 581, 60 Pac. 207, the supreme court of Oregon said: “It would be protecting a trespasser, to the injury of the owner, to hold that a person whose property is wrongfully taken by a single trespass cannot maintain an action in replevin, so far as it is the proper and appropriate remedy, for so much of the property as can be included in the action, and trover for the remainder. Otherwise, he would be compelled to waive his right to the possession of the specific property wrongfully and. unlawfully taken from him, and which might possess some peculiar and unusual value, and resort to the action of trover, because replevin would not lie for a portion of the property taken at the same time, or to forego a part of his right, and be satisfied with a partial reparation of the wrong.” We think this is the correct rule of law, supported by both reason and authority.
On the trial the plaintiff produced the deputy clerk and recorder as a witness, and proved by him, over the objection of the defendants, that a certain bill of sale from Fay to the plaintiff, purporting to transfer the property in question on November 1st, had been filed for record and bore the indorsement of the county clerk as having been filed November 1, 1905, at 12 minutes past 2 o’clock P. M. We find no error in this action of the court, even assuming that the law does not provide for filing such a document. One of the questions at issue was whether Fay had made a bona fide transfer of this property to plaintiff before the date of attachment, and evidence of what they actually did, and the manner in which they did it, was admissible as bearing upon their good faith in the transaction. The question of notice is not involved, so that it becomes im[456]*456material whether the instrument was properly filed or not. The amount of publicity attempted to be given the purported sale was a material subject of inquiry, and the filing of the bill of sale in a public office sheds some light upon the matter.
Defendants complain that they were not allowed to inquire of the plaintiff as to the capacity in which he worked for Fay prior to the alleged sale, and of the witness Bechard as to whether the relations of plaintiff and Fay appeared to be friendly or otherwise. These inquiries were pertinent; but the record shows that the jury were informed, during the course of the trial, as to what the general relations of the parties were and what plaintiff’s employment was, and we find no prejudicial error in the rulings, in the absence of a specific and more comprehensive offer of proof.
In ruling out the question propounded to the witness Bechard, the court remarked that it was a reasonable presumption that, when one man works for another, they are on good terms. It is now urged that this remark was prejudicial to defendants. It may suffice to say, however, that, while defendants excepted to the ruling of the court on the question of the admissibility of the evidence sought, there is nothing in the record to show that they objected to or took any exception to the remark of the court.
It is urged that the court was in error in allowing the plaintiff to amend his reply; but we cannot agree with the contention. The allowance of the amendment rested in the sound legal discretion of the trial court, and no showing of prejudice to the defendants was made.
Exceptions were taken at the trial to several rulings of the court upon questions propounded to witnesses as to how much stock had been purchased for the market just prior to the alleged sale. These questions were proper, and objections thereto should have been overruled; but on an examination of the record we find that the jury had the benefit of the testimony of several other witnesses on the same subject, and we do not think the defendants were prejudiced by these rulings.
[457]*457Again, it is urged by the defendants’ counsel that the testimony shows actual fraud in the transfer from Fay to Gehlert. The jury, however, found the issues in favor of the plaintiff, the trial court denied a new trial, and the testimony is not of such a nature as to warrant this court in setting aside the verdict for that reason.
Under the issues raised by the answer, the defendants attempted to show that, Avhile the summons was dated November 3d, it was in fact issued and delivered to the sheriff with the writ of attachment on November 2d.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. JUSTICE SMITH
delivered the opinion of the court.
This is an action in conversion, to recover of Quinn, a sheriff, and his official sureties, damages for the alleged wrongful seizure of the stock and fixtures in a certain meat market in Butte. Plaintiff alleges that the property taken was of the value of $1,500, and that the entire damages suffered by him are $1,800.
[454]*454The defendants answered that the property was taken by virtue of a writ of attachment against one Fay, and that plaintiff was neither the owner nor in possession thereof at the time of taking. As an affirmative defense the defendants allege that before the commencement of this ease the plaintiff had split his cause of action by beginning an action in claim and delivery before a justice of the peace for one horse, wagon, and harness, which property was a part of that taken by the sheriff under his writ at the same time and as’ a part of the same act or transaction complained of by the plaintiff. The allegation is that Gehlert had judgment before said justice of the peace, and an appeal was had to, and is now pending in, the district court.
By way of reply the plaintiff set forth that the writ of attachment under which justification was attempted was void, because it was issued prior to the issuance of the summons in the case against Fay; it having been issued on November 2. 1905, and the summons on the following day. Plaintiff also denies that he has split his cause of action, and denies that the horse, wagon, and harness were taken with the property mentioned in the complaint or as a part of the same transaction.
The cause was tried before the district court of Silver Bow county, sitting with a jury. A general verdict for $1,500 in favor of the plaintiff was rendered, and in answer to a special question the jury found the actual market value of the property taken to be $957. From a judgment on the general'verdict, and an order denying a new trial of the issues, the defendants have appealed to this court.
The first error assigned is based upon the refusal of the court to direct a verdict for the defendants, for the reason that the new matter in the answer was not put in issue by the reply. We have been somewhat at a loss to follow the idea attempted to be conveyed by this reply, especially in view of the fact that the sheriff’s return to the writ of attachment shows that the horse, wagon, and harness were taken from him in an action brought, not by the plaintiff, but by Fay. However; we do find therein a denial that the property was all taken at the same time and [455]*455as a part of the same transaction. But the evidence leaves no question that the plaintiff has split his cause of action, so that it becomes necessary to inquire whether he had the right to do so.
It appears that, prior to filing complaint in the justice of the peace court against him, the sheriff had disposed of the greater part of the property described in the complaint in this cause. In the case of Huffman v. Knight, 36 Or. 581, 60 Pac. 207, the supreme court of Oregon said: “It would be protecting a trespasser, to the injury of the owner, to hold that a person whose property is wrongfully taken by a single trespass cannot maintain an action in replevin, so far as it is the proper and appropriate remedy, for so much of the property as can be included in the action, and trover for the remainder. Otherwise, he would be compelled to waive his right to the possession of the specific property wrongfully and. unlawfully taken from him, and which might possess some peculiar and unusual value, and resort to the action of trover, because replevin would not lie for a portion of the property taken at the same time, or to forego a part of his right, and be satisfied with a partial reparation of the wrong.” We think this is the correct rule of law, supported by both reason and authority.
On the trial the plaintiff produced the deputy clerk and recorder as a witness, and proved by him, over the objection of the defendants, that a certain bill of sale from Fay to the plaintiff, purporting to transfer the property in question on November 1st, had been filed for record and bore the indorsement of the county clerk as having been filed November 1, 1905, at 12 minutes past 2 o’clock P. M. We find no error in this action of the court, even assuming that the law does not provide for filing such a document. One of the questions at issue was whether Fay had made a bona fide transfer of this property to plaintiff before the date of attachment, and evidence of what they actually did, and the manner in which they did it, was admissible as bearing upon their good faith in the transaction. The question of notice is not involved, so that it becomes im[456]*456material whether the instrument was properly filed or not. The amount of publicity attempted to be given the purported sale was a material subject of inquiry, and the filing of the bill of sale in a public office sheds some light upon the matter.
Defendants complain that they were not allowed to inquire of the plaintiff as to the capacity in which he worked for Fay prior to the alleged sale, and of the witness Bechard as to whether the relations of plaintiff and Fay appeared to be friendly or otherwise. These inquiries were pertinent; but the record shows that the jury were informed, during the course of the trial, as to what the general relations of the parties were and what plaintiff’s employment was, and we find no prejudicial error in the rulings, in the absence of a specific and more comprehensive offer of proof.
In ruling out the question propounded to the witness Bechard, the court remarked that it was a reasonable presumption that, when one man works for another, they are on good terms. It is now urged that this remark was prejudicial to defendants. It may suffice to say, however, that, while defendants excepted to the ruling of the court on the question of the admissibility of the evidence sought, there is nothing in the record to show that they objected to or took any exception to the remark of the court.
It is urged that the court was in error in allowing the plaintiff to amend his reply; but we cannot agree with the contention. The allowance of the amendment rested in the sound legal discretion of the trial court, and no showing of prejudice to the defendants was made.
Exceptions were taken at the trial to several rulings of the court upon questions propounded to witnesses as to how much stock had been purchased for the market just prior to the alleged sale. These questions were proper, and objections thereto should have been overruled; but on an examination of the record we find that the jury had the benefit of the testimony of several other witnesses on the same subject, and we do not think the defendants were prejudiced by these rulings.
[457]*457Again, it is urged by the defendants’ counsel that the testimony shows actual fraud in the transfer from Fay to Gehlert. The jury, however, found the issues in favor of the plaintiff, the trial court denied a new trial, and the testimony is not of such a nature as to warrant this court in setting aside the verdict for that reason.
Under the issues raised by the answer, the defendants attempted to show that, Avhile the summons was dated November 3d, it was in fact issued and delivered to the sheriff with the writ of attachment on November 2d. While the presumption obtains that the clerk of the court did his duty and properly dated the summons, this presumption is disputable, and the court properly submitted the question to the jury.
The court gave the following instruction to the jury, viz.: “You are instructed that fraud is never presumed, but must be clearly and distinctly" proven. ” Defendants contend that this instruction is erroneous. Subdivision 5 of section 3390 of the Code of Civil Procedure provides that in all proper cases the jury shall be instructed that in civil cases the affirmative of the issue must be proved, and, when the evidence is contradictory, the decision must be made according to the preponderance of the evidence; that in criminal eases guilt must be established beyond a reasonable doubt. Without analyzing the instruction complained of, to the extent of arriving at its exact meaning, we have no hesitancy in holding that it advised the jury that something more than a bare preponderance of testimony was necessary to be produced by the defendants on the question of fraud, and therefore laid too great a burden upon them. There is but one rule in this state by which civil cases triable by jury are to be determined, and that rule is found in the statute just quoted. Cases may be found in which courts of other states have held that in certain civil actions a higher quality of proof is required than in others; but there is no such rule in Montana. In this jurisdiction all such civil cases are to be decided according to the greater Aveight of the evidence, and a bare preponderance in favor of the party holding the affirmative of the issue [458]*458is sufficient to warrant, and should result in, a decision in his favor. Cases may be found in which it is held -that the expressions “clear,” “convincing,” “satisfactory,” and “clear of all reasonable doubt;” as applied to evidence, substantially convey the'same idea and require the same degree of proof, to-wit, beyond a reasonable doubt. (See Winston v. Burnell, 44 Kan. 367, 21 Am. St. Rep. 289, 24 Pac. 477.) It is only necessary to decide here that the expression “clearly and distinctly proven” means something more than proven by a preponderance of the evidence, and to suggest that any attempt to vary the rule laid down by the statute is fraught with danger and should be avoided. Juries should be instructed on all proper occasions, in civil cases, that their decision should be made according to the preponderance of the evidence.
The jury by their verdict awarded general damages in excess of the amount claimed in the complaint, but this will probably not occur again.
The judgment and order of the district court of Silver Bow county are reversed, and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.