Wilson v. Hillhouse

14 Iowa 199

• Court: Supreme Court of Iowa
• Decided: December 5, 1862
• Status: Published

Opinions

Lowe, J.

An action for replevin, which resulted in a judgment for the defendant, and the plaintiff appeals, assigning for error:

I. There was error in allowing the cross-examinations and introduction of evidence, and overruling plaintiff’s objections, as set forth in bill of exceptions No. 1

This bill of exceptions covers ten pages, and includes a large amount of evidence and cross-examinations; and .the counsel assigning the above error will find a very conclusive answer to the same, in § 3546 of the Revision of 1860

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II. There was error in sustaining defendant’s objection to the evidence proposed to be introduced, as set forth in bill of exceptions No. 2.

It seems, from this exception, that the plaintiff offered to prove, by his own testimony, that, in suing out his writ of replevin, he was compelled to deposit with his surety on the replevin bond $500, as indemnity. This evidence was sought to be introduced, to prove the damages which the plaintiff had sustained by tbe wrongful detention of tbe property. If tbe plaintiff did sustain any damages from this cause, it was not tbe natural or necessary result of tbe defendant’s conduct, and is too remote and contingent to be tbe foundation of any claim for damages.

III. “ There was error in sustaining defendant’s objection to tbe evidence proposed to be introduced, as set forth 'in bill of exceptions No. 3.”

Tbe evidence, which tbis bill of exceptions shows was rejected, bore so very remotely upon the issue between tbe parties, that counsel for appellant makes no allusion, in argument, to tbis assignment of error; and it really merits no attention.

IY. With' regard to tbe fourth or last error assigned, it is proper to state, as preliminary to its consideration, that tbe defendant, being tbe sheriff of the-county, had seized tbe property in controversy, to satisfy an execution in' favor of tbe State of Iowa against James A. Wilson, tbe father of the plaintiff. The plaintiff, to maintain his action, and to show bis title and right of possession to tbe property replevied, exhibited a deed, wbicb conveyed, for tbe consideration of $10,000, all the personal and real estate of his father, James A., to himself. Tbis deecFof conveyance included the property replevied, except four steers, owned by tbe plaintiff, anterior to the making of said deed. Tbe Iona fides of tbis conveyance was assailed by tbe defendant; ■ evidence was elicited, tending to show that tbe $10,000 bad not been paid; that it was nothing like an adequate consideration for tbe property sold, &c. Upon the cross-examination of the plaintiff by tbe defendant, be stated, among other things, that a part of the consideration, wbicb he was to pay for said property, was tbe assumption of some of bis father’s liabilities, especially tbe paying of some incumbrances upon tbe land, in favor of Miller, Armstrong & Kfiechbaum, subject to whose liens he had purchased the land.

Afterward the plaintiff was again introduced in behalf of himself and offered to prove, according to the language of the fourth bill of exceptions, “ that he had gone on in good faith to pay large sums of money to Kriechbaum and had made new arrangements and secured most of the balances.” Objection being made this evidence was refused and such refusal constitutes the last assignment of error.' The objection tq the introduction of this evidence is inappreciable to us; it certainly tended (not to be sure in a very strong degree) to sustain the good faith of the deed under which the plaintiff held, by showing that, at least, a part of the consideration of the same had been paid. But it is said that it’ was a payment of a part of the incumbrances on the land which has nothing to do with this controversy. Still it is replied that the plaintiff holds the personal property in dispute by the same deed which conveys to him the land and as the whole deed is impeached as fraudulent, whatever tends to disprove the charge is legitimate evidence.

It is impossible for us to estimate the effect which the rejected facts offered to be proved by plaintiff, would have had upon the minds of the jury, ór whether the same in the result would have affected the substantial rights of the parties or not; and therefore it would seem to be the dictate of prudence to be upon the safe side to recognize the error, and award to the plaintiff another hearing by reversing the judgment for this cause, which is accordingly done.

Reversed.

Note.— “§3546. An assignment of error need follow no stated form, but must, in a way as specific as the case will allow, point out the very error objected to. Among several points in a demurrer, or in a motion, or instructions or rulings in an exception, it must designate which is relied on, as an error; and the court will only regard errors which are assigned with the required exactness; but the court must decide on each error assigned.” — Reporter.