Weil v. Paul

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action against the Sheriff and his sureties on his official bond to recover the value of certain personal property, consisting of dry goods and clothing, which had been taken by Paul, as Sheriff of Calaveras County, under an attachment against one Strauss, from whom the plaintiff had purchased them. It seems that the Sheriff had previously levied upon the same property, under a prior attachment against Strauss, and that while the goods were thus in bis possession Strauss sold them to Weil for the purpose of paying off the attachment, and the Sheriff, after the payment of the debt, released the attachment, and Weil took possession, put them away in his cigar and tobacco store, and employed Strauss to sell and peddle them out for him. While they were in this situation another attachment against Strauss was levied on the goods, and Weil brings this suit to recover their value. He recovered judgment in the Court below, and the defendants appeal.

The only, statement on appeal in this case is a stipulation, signed by the attorneys of both parties, agreeing that the judgment roll, orders, and instructions given, and refused by the Court, the statement on motion for a new trial, and the stipulation thus signed, “ is a true and correct statement on appeal to the Supreme Court, and may be used as such without further certificate or identification.” Hone of these papers contain the grounds of appeal required by Sec. 338 of the Practice Act, the construction of which was settled by this Court in the case of Barrett v. Tewksbury (15 Cal. 354), [494]and the respondent now objects that for this reason the statement forms no part of the record, and must therefore be entirely disregarded. We think, however, the agreement of the parties amounts to a waiver of this objection. It would be an injustice to the appellant, if after entering into an agreement of this kind the respondent should be permitted to make such an objection in this Court for the first time.

On the trial the defendants asked the Court to give the following instruction, which was refused, and which they now assign for error: “ If the jury believe the evidence of A. Strauss, the plaintiff’s witness, that he had the possession of the goods in controversy after the sale to the plaintiff, and was selling and peddling them out, they will find a verdict for defendants.” There was no error in refusing to give the instruction in this form, as it included a statement by the Court that the witness had testified to certain facts, and the jury are the proper judges of what a witness has testified to.