Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-03
Of THE SUPREME COURT
pusLIsuED BY AUTHORITY.
H. A. JAMDr, Trustee,
..
CHARLES A. SOUTH, Sheriff Lincoln county

H. A. JAxDr, Trustee.
CHARLES A. SOUTH, Sheriff Lincoln county.
In THE SUPREME CouRr OF THE TE1R1.
TORY OF DAKOTA, AT THE JANUARY
Term, 1879.
!. Practice: This court will not reverse
the judgment Of the court below because Of
the insuficiency of the evidence to support
the finding Of fact, without the certificate of
the court below, that the bill of exceptions
contains all the evidence ; but this court
will review Objectionable testimony bearing
upon . single question in connection with
the finding of tact and conclusion of Law
based upon that finding, and whore it clear
" appears that such evidence VA impfOp-
erly received, and that the finding Of fact
was based upon that improper evidence, and
the conclusion of law Dond upon that
finding of fact was erroneous, this court
will reverse.
2. Attorneys fees: In this territory the
prevailing party cannot recover attorneys
or counsel fees, unless there be IN agreement
or contract express or implied to pay the
same, and the statute authorizing the recov-
~ in an action for. the wrongful taking or
detention Of personal property, of damages
for the detention thereof, does not change
this rule.
8. Measure Of damages: The general
rule a. TO damages in tort actions, or &C
tions not founded upon contract, ig the val
ue of the property wrongfully taken, at the
time, or at any time before recovery.
4. Fsnding ofJact: Insud.cie.cy Of: The
failure of the court below. where the action
Vas tried BY the court, to find or pass upon
all the material issues, il error, for which
this court will reverse the judgment.
OPINION.
Barnes, j. This is an action by plaintiff
the owner and holder of a chattel mortgage
covering certain personal property describp
ed in the complaint, against the sheriff O
Lincoln county, who had attached and
taken possession of the property in ar
action brought by certain creditors o
the m%origaRors. The action was trieC
by the district court of Lincoln county:
Judgment recovered in favor Of the plain
tiif, and from that judgment an appeal i
taken 10 this court.
The answer of the defendant after alleg
ing the taking of the goods a. sheriff 0
Lincoln county by virtue of an attachmen
further ayers that the chauel mortgage IN
der which the plaintiff CLAIMS is void est.
creditors, and therefore the plaintiff
not entitled to the possession of tn
goods.
We see nc reason for holding the chatte
mortgage void IS to creditors, and was ths
the only ques,ion presented on this sppeaI
The judgment appealed from would b
affirmed.
We will not however discuss this ques
ton at length. A for other ressons herei>
!. specified the judgment Of the court belo,
must be reversed and a new tri,
ordered.
THE plaintiff claims the pc session of Ii
property and damage for Withholding poi
session from him. Our code of civil proct
dure authorizes = recovery of damages b
the prevailing party for the wrongful
taking aud OBTAINING personal property.
See the case Of Holt vs.. Van sEpps, IAN
authority there cited) decided BY this coul
at the December term, 1875.
nmay be proper here to remark OWN
to the confused in which the ca,
at bar is in this court, We have some diff
Guilty in determining precisely, to what ez
tent we may properly exspiaeth e papel
and proceedings sent up by the distri,
court, on this appeal. There il, no c-rtif
cate. Of the presiding Judge that the bill
exceptions contain all the evidence submit
ted in the court below, or so much there,
as-iss necessary to- be considessd BY III
court in passing upon the questions pr
scented BY the Bill Of exceptions:
Upon page II Of the bill ofexceptio,
the following queation is propounded to I
A. Jandt, a witness on the stand.a
: Estate what damage, il any. you s~ustaine
BY the detentionssof The property"
The question seems 10 have been prope
The answer not responsive, and clearly O.
jectionable. We give the answer, which
as follows:
"Is required one OF thu firm to attend
the case, whose gexpensesWere fourteen
fifteen ~doilars, and his loss of timSto Il
firm wassihree days, vslued at ten dolls
per dsyssssnd the expenses of the attorne
fourteen OF fifteen dollars"
Thisevidence was specifically objected
-thesgohjsction soyerruled-the eviden'
allowable stand, and tothis ruling IN e
ceptienEw va TAKEN.
p,coptinned Tomorrow
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