Anderson v. Medbery

Citations

• 16 S.D. 329
• 92 N.W. 1087
• 1902 S.D. LEXIS 134

Syllabus

<p>1.' In an action against a sheriff for the conversion of personal property, defendant denied plaintiff’s title and possession, the taking, etc., and alleged that a third party, while the owner and in possession of the property, mortgaged the same; and set out various proceedings to foreclose the mortgage, resulting in the sale of the property by defendant, as sheriff, to satisfy the mortgage, one of the proceedings being an action by the mortgagee against such third party to recover possession from such third party for the purpose of foreclosing. Plaintiff moved to strike from the answer all the allegations in justification on the ground that the judgment in the action for possession was not binding on plaintiff, he not being a party; that the mortgage was no evidence of title as against plaintiff; that plaintiff was not a party to any of the proceedings. Held proper to refuse to strike out such allegations, inasmuch as the title in the third party would have been no defense unless defendant connected himself therewith, and therefore the facts were necessarily pleaded, and inasmuch as the proceedings and foreclosure would be rightful against plaintiff, and binding on him, if the third party was in fact the owner of the property when the mortgage was executed.</p> <p>2. Where, in a suit against a sheriff for the conversion of personalty, his answer justified the taking as under mortgage foreclosure proceedings against a third party alleged to be the owner, it is proper to receive in evidence the mortgage and various proceedings leading up to the foreclosure.</p> <p>3. Comp. Laws, § 5090, subd. 3, provides that when the notice of a motion to move for a new trial designates as the ground of the motion insufficiency of the evidence to justify the verdict, the statement shall specify the particular in which the evidence is insufficient, and, if no such specification be made, the statement shall be disregarded on the hearing of the motion. Held, that the statute is man