Tronson v. Robson , 37 Wis. 353 ( 1875 )

Cole, J.

This is an appeal from an order denying a motion for a new trial. The motion was made upon the minutes of the court, on the ground, among others, that the verdict was contrary to the law and evidence. It seems to us that a new trial should have been granted on that ground.

The bill of exceptions purports to contain all the evidence given on the trial. If it does actually contain all the testimony — and of course the case must be decided upon the assumption that it does, — then we fail to find any evidence whatever which tends to show title in the plaintiff to the logs in controversy. The title of the plaintiff, as stated in the complaint, was founded upon writs issued to him as sheriff in a certain lien suit, wherein one Padden was plaintiff and one Smith was defendant. He alleges that he attached the logs in that suit, taking them into his possession, and continuing to hold them until the defendant unlawfully took them from his possession and converted them to his own use. On the trial, the plaintiff, to prove his special property in the logs, offered in evidence the petition, writ of attachment, return to the writ, judgment, etc., in the lien suit; which were all admitted, against the defendant’s objection. Assuming that this evidence was properly' admissible against the defendant, as tending to prove title in the plaintiff to the logs described in that suit, and that Padden performed labor upon those logs and established a lien against tbem, still tbe identity of those logs with tbe ones claimed in tbe action should be proven. As we understand the bill of exceptions, there was an entire failure of proof upon that point. It is plain that tbe plaintiff was bound to identify those logs with the ones converted by the defendant. Aside from the record in the lien suit, no proof was offered to show that the logs attached in that suit were those upon which Padden performed services: and no attempt was made to identify those logs with those converted as alleged in the complaint. It is manifest that this was a fatal defect in the plaintiff’s case. Even in his own testimony the plaintiff says that he did. not know that the logs which he attached in Padden’s suit were the ones he saw in defendant’s boom. And this is really the only evidence offered to prove the identity of the property in litigation in this action with that against which Padden established his lien.

There is another fact which is left in great obscurity in this record, and which should be explained. It is this. If the plaintiff attached the logs described in the lien suit, and took them into his possession, when and how were they taken from his possession? The record is likewise silent upon that point. 'There should be some evidence offered to show that the allegation of the complaint was true, that the defendant unlawfully took possession of these logs without permission or consent of plaintiff.

But, for reasons given on the first question, the order must be reversed.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings.