eBook details
- Title: Brennan v. Mayo Et Al.
- Author : Supreme Court of Montana
- Release Date : January 08, 1935
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 61 KB
Description
Conversion ? Sheriffs ? Wrongful Levy on Wifes Property Under Execution Against Husband ? Possession of Personal Property ? Proper Instructions ? Partnership Between Husband and Wife ? When Refusal of Instruction on Subject Proper ? New Trial ? Appeal. Conversion ? Sheriffs ? Wrongful Levy of Execution ? Counsel Calling Attention of Jury to Fact That Officer Indemnified ? When not Reversible Error. 1. Where, in an action for conversion against a sheriff and his official bondsman defendants in their answer set forth the fact that the officer was indemnified and their own witnesses testified to the same effect, the statement by the attorney for plaintiff made to the jury that the sheriff, being indemnified, any judgment against him would "not cost him a penny," held not reversible error. - Page 440 Appeal ? Error in Instruction on Ground Different from That Urged on Settlement of Instructions may not be Considered by Supreme Court. 2. Alleged error in an instruction on appeal on a ground different from that urged in the district court on settlement of instructions is not available either on motion for new trial or on appeal. Conversion ? Action by Wife for Wrongful Levy on Her Property on Execution Against Husband ? Possession of Personalty ? Proper Instruction. 3. In a wifes action for the conversion of fixtures and contents of a country store based upon a wrongful levy of execution issued in an action against her husband, of which property she claimed to be the sole owner, an instruction that the law presumes that things in the possession of a person are owned by him, and that if plaintiff was in possession of the property at the time of the levy the presumption was that she, and not her husband, was the owner of it, held proper. Same ? Possession of Personal Property ? Proper Instruction. 4. In an action by the wife for the conversion of her separate property by means of a levy of execution, an instruction that if the jury found that plaintiff actually owned the property, verdict should go in her favor was not erroneous, as against the contention that it failed to advise the jury as to a creditors right to levy on the wifes property to satisfy her husbands debt where the creditor was misled into believing that it belonged to her husband. (Sec. 5799, Rev. Codes 1921.) Same ? Action by Wife of Alleged Owner of Store ? Instruction as to Partnership ? Proper Refusal. 5. Where in a wifes action for the conversion of her separate property her complaint alleged that she was the sole owner thereof, and defendant, denying this, averred that the husband was the owner, and the evidence of both parties bore on this issue, and there was no testimony as to a partnership between them, an instruction based on the theory of partnership was properly refused. New Trial ? Motion Based on All Statutory Grounds ? General Order Granting Motion ? Appeal ? Presumption. 6. Where a motion for a new trial was based on all the grounds enumerated in section 9397, Revised Codes 1921, and the trial court in granting it did so in a general order, the supreme court on appeal from the order, after determining that all grounds other than the one based on the insufficiency of the evidence have no merit, will presume that the trial court in the exercise of its discretion granted the motion on the latter ground. Same ? General Order Granting Motion ? When not to be Disturbed on Appeal. 7. The disposition of a motion for a new trial rests in the sound legal discretion of the trial court, and where the order granting the motion is in general terms, it will not be disturbed on appeal where there is a substantial conflict in the evidence.