Wyoming National Bank v. Dayton , 1 Wyo. 336 ( 1875 )

By the Court,

Blaib, J.:

This action was brought in the district court of Albany county, and the venue changed to the county of Carbon; a trial was had, verdict rendered and judgment entered thereon, at the September term, A. D. 1876.

It is brought here for review by the plaintiff below, who is now the plaintiff in error in this court. It appears, by the petition in this case, that the plaintiff in error instituted an action in replevin in the district court of Albany county, against the defendant in error, to recover the possession of five hundred cords of wood. The petition alleges that the plaintiff was the owner of said wood, and was entitled to the immediate possession thereof; that the defendant, wrongfully and unjustly, detained in his possession the said wood, and had so detained the said wood from the plaintiff for the period of thirty days, to the damage of the plaintiff in the sum of five hundred dollars.

The answer of the defendant to the plaintiff’s petition: 1. Sets up a general denial to all matters in said petition contained; 2. Denies that the plaintiff was the owner of the wood in question, or was entitled to the immediate possession thereof, and further denies that the defendant ever took or held the wood in question, or ever unlawfully detained the possession of the said wood from' the plaintiff; 3. The defendant alleges that, as the lawful sheriff of Albany county, and by virtue of certain writs of attachment, issued out of the .district ’court of said county, directed to him, the sheriff of said county, against one W. S. Bramel, he levied upon said wood as the property of said Bramel, and took the same into his possession; that at the time of the said levy, the said Bramel was the owner of and in the possession of said wood, and by reason of said levy, he, the defendant, as sheriff, had a special property in said wood, to the amount of twenty-three hundred dollars, for which he prayed judgment. The wood in question, levied on by virtue of the writs of attachment, was delivered to the plaintiff.

There are two questions which are necessarily raised by the pleadings in this case: .

1. Was the plaintiff in error the owner of the wood in question, and entitled to the immediate possession of the same at the time this suit was instituted?

2. If so, did the defendant in error wrongfully detain the property in controversy from the plaintiff ?

Before the plaintiff could recover, it is manifest that he must substantiate the first proposition by a preponderance of evidence. The jury having found for the defendant in error and assessed his damages at two thousand five hundred dollars, the plaintiff brings this case here upon a writ of error in order that certain questions of law arising in the trial of the cause may be reviewed by this court. The first, second and third errors assigned by the plaintiff in error involve questions of fact, the determination of which were the special province of the jury. The court will not set aside a verdict and grant a new trial upon the sole ground that the verdict is not sustained by sufficient evidence, unless it is manifest that the jury acted in a total disregard of the evidence, or acted against the great weight of the evidence to such an extent as to show that the verdict was the result of improper motives: Minturn v. Burr, 20 Cal. 48.

After a careful examination of the evidence as contained in the record, we are not only satisfied that the verdict is warranted by the evidence, but we find it difficult to see how the jury could have arrived at any other conclusion than they did. As to the amount of damages assessed by the jury, we are of opinion that the measure of. damages should have been for the aggregate amounts claimed in the attachment writs under which the sheriff seized the wood in question, and a remittitur is therefore directed to be filed by the defendant in the court below covering the interest calculated by the jury upon said amounts, which amount we find to be five hundred and seventy-three dollars and twenty cents.

As to the fourth error assigned by the plaintiff in error, we are of opinion that the plaintiff having put the title of said wood in issue by the pleadings, claiming his right of possession solely on that ground in his petition and by his testimony, the instruction complained of correctly states the law. As to the other parts of said instruction the record shows that the writs were issued and served on the same day, and that no rights of third parties intervene between the issuing and the service of the writs. The error, if it be error, is therefore harmless.

The fifth error assigned is as to the giving of the second instruction asked for by the defendant. It appears from the evidence in the case that no question is involved or arises between the vendor or the vendee, but solely between the vendee and the attaching creditors of the vendor. We think the instruction is applicable to the pleadings and evidence in the case. The plaintiff rest his rights to recover possession of the wood in question on his absolute ownership, derived or acquired by an unconditional purchase from W. S. Bramel.

It is not claimed that there was a delivery of the wood, and the record shows that the full and absolute control and possession of the same was publicly and privately retained by Bramel after the alleged unconditional sale. And while it is held in many states that the retention of possession of personal property by the vendor after an unconditioñal sale is only prima facie a fraud, the federal courts hold it to be a fraud in law, and as against creditors and bona fide purchasers renders the sale void: 1 Smith’s Leading Cases, 523; 1 Cranch, 309, 316; 4 Mason’s C. C. 312; 2 Kent, 515-532.

The supreme court of the United States being the appellate court to which this case must go if appealed, we feel bound by its decision, and shall so hold in this case. In that view there is no error in the instruction. But there is another view of the case which we take that, without reference to the merits of the instructions complained of, renders the question raised by it immaterial and the instruction itself harmless, even if erroneous. The jury unquestionably found from the evidence that there was no sale of the wood by which title or right of immediate possession to it passed to the bank. We think the preponderance clearly shows that there was nothing more than an arrangement made by which, when Bramel had delivered five hundred cords of wood to the railroad company the proceeds were to go to the bank. We find no error in giving the instruction number three complained of as the sixth error. The remittitur ordered disposes of the objection made to the fourth instruction asked and given at the request of the defendant. We find nothing in the record making it necessary to examine the other errors complained of, as some, we think, are inapplicable, and others were not seriously insisted on in the-argument of the cause; for this reason they are overruled.

Judgment affirmed.