Martin v. Barry

CHIPMAN, C.

The action was trover, to recover the value of certain thirty tons of hay, and also damages for pursuit of the property. At the close of plaintiff’s evidence defendant moved for a nonsuit; his motion was granted, and judgment was entered for defendant. Plaintiff appeals from the judgment and from the order denying his motion for a new trial. The grounds of the motion for nonsuit were: 1. That there is no evidence connecting defendant in any way with the hay; and 2. That plaintiff offered in evidence certain proceedings in the justice’s court of Petaluma Township, Sonoma County, showing that defendant had obtained a judgment against the plaintiff for the whole of the hay involved, and plaintiff therefore has no interest in the hay.

John Zenoni, plaintiff’s assignor, testified that he was in possession of a ranch which he had leased for one year from defendant and her son, William Barry, dated September 29, 1896; that the rental was payable in cash, and was fully paid for the year; that he raised a crop of hay o,n the land, part of which he sold, and that on August 26, 1897, he had twenty-five bales - remaining, on which day one Brush, constable of Petaluma Township, served certain papers on him and took all the hay and put it in the keeping of one Tom Barry (who was defendant’s son), and that he, Zenoni, never got the hay back (nor did his assignee, as elsewhere appeared), but the hay was left on the ranch, and was there after the lease expired.

Plaintiff next introduced in evidence certain papers in an action brought in the justice’s court of Petaluma Township, wherein Julia Barry (defendant herein) was plaintiff and John Zenoni (assignor of plaintiff herein) was defendant. These papers were introduced presumably to show that Mrs. Barry took the hay from Zenoni and by what means. The action was claim and delivery to recover possession of the same hay as is here in question. Plaintiff introduced the complaint, answer, and undertaking. No affidavit, as required by the statute, appeared among the papers, and none was introduced, nor was its absence explained. Plaintiff also intro

[542]

duced the summons in the action which was returned duly served on August 26, 1897. Plaintiff next introduced what is entitled, “Transcript on Appeal offered in evidence,” which apparently is followed by the entries in the justice’s docket in Julia Barry