Carroll v. Sprague

Appeal from a judgment for the defendant, and from -an order denying a new trial in the Superior Court of the County of Butte. Hundley, J.

Action to recover the possession of seventeen mules, of the alleged value of two thousand seven hundred dollars. The defendant justified, as sheriff, under an attachment issued at the suit of Baker & Hamilton, against one Eckert, whose property the mules were alleged to be; and also denied that the mules were of any greater value than one thousand seven hundred dollars. The defendant was permitted to file an amendment to his answer, setting up that the property was replevied by the plaintiff after the suit was commenced. The plaintiff moved to file a supplemental complaint, alleging that, after the property was replevied by him, defendant, by virtue of other writs of attachment or executions issued at the instance ■ of other creditors of Eckert, wrongfully seized and took into his possession, and has ever since wrongfully retained, ten of the aforesaid mules, etc., of the value of one thousand two hundred and fifty dollars; but the Court refused to permit the same to be filed, and afterwards, on the trial, refused to permit evidence to the same effect.

The verdict was as follows: “We, the jury, find a verdict for the defendant, seventeen mules at one hundred and twenty-five dollars per head.” Judgment was entered for the seventeen mules, or their value, to wit, one hundred and twenty-five dollars each.

It appeared from the evidence that one R. S. Carey was the owner of the mules' originally, and that Eckert wanted them to work his farm in Butte County; that Carey was willing to sell them, provided that the plaintiff would indorse Eckert’s note; which the plaintiff agreed to do if the title to the mules should be put in him; that thereupon Carey executed to the plaintiff a bill of sale as follows: “Sacramento, October 11, 1878. This is to certify that I have this day sold J. H. Carey twenty-four mules branded 91 and 16 for the sum of two thousand four hundred dollars. R S. Carey.” Afterwards the plaintiff paid the note. The plaintiff testified that the note had never been paid, and Eckert testified to the contrary.

On the trial of this case, Hiram Eckert, a witness called, for defendant, testified that the mules in controversy were not the property of the plaintiff. On cross-examination, he was asked whether at a certain time and place in Oroville he did not say to one Burt that the mules in controversy in this case were the property of the plaintiff; to which the witness replied he did not. Plaintiff subsequently called said Burt, and after he was sworn, offered to show by him that at said mentioned time and place in Oroville, Hiram Eckert had told him that the mules in controversy in this case, were the property of the plaintiff. Defendant objected to said offer, on the ground that said communication was a confidential one, made while the relation of attorney and client existed between said Eckert and said Burt, and thereupon, in support of said objection, examined said Burt as follows: “Q. In any conversation you had with Eckert upon the subject, were you not his counsel? A. In one sense; and in another I was not; I had incidentally done a great deal of business for Eckert, and só had the late firm of Burt & Gale; Eckert was owing us several hundred dollars, and never paid us one dime for legal services; he came to me to take him through insolvency, in December last, or rather for the firm of Burt & Hamilton to do it; I absolutely refused to have anything more to do with him. I told him I never would put pen to paper again for him, and that our relationship ceased as attorney and client; it happened that General Hamilton, my law partner, came to Oroville within a day or two, and Eckert came in again. Hamilton said, in an off-hand way, ‘ I’ll take it,’ and he drew up Eckert’s petition and schedule, and signed the firm name to it. I paid no attention to the proceedings, and did not consider myself in the case.”