Sax v. Wilkerson , 6 Kan. App. 203 ( 1897 )

Mahan, P. J.

The plaintiff in' error sued the defendant in error, who was sheriff of Shawnee County, in replevin, to recover the possession of clothing, claiming ownership under a chattel mortgage from Jacob Levi. The defendant had possession, as sheriff, under a levy of attachment against Levi at the suit of one of Levi’s creditors. The contention of the defendant was that the mortgage was void because made to hinder, delay, and defraud the creditors of Levi, and that Sax took it with knowledge of this vice. Sax and Levi are brothers-in-law. Sax resides in Chicago and does business in Ottumwa, Iowa; Levi resides in Topeka and was engaged in mercantile trade there. There was a trial to the court and a jury, and verdict and judgment were rendered for the defendant.

The plaintiff makes the following assignments of error :

“ 1. The court erred in permitting the defendant to introduce incompetent, irrelevant and immaterial evidence.

“2. The court erred in permitting the defendant to introduce incompetent, irrelevant and immaterial documents in evidence, and also without first laying a proper foundation therefor.

“3. The court erred in permitting the defendant .to introduce record evidence without any preliminary proof of such records.

“4. The court erred in overruling the plaintiff’s motion for a new trial.

“5. The verdict and judgment are contrary to the law and the evidence.”

These assignments are general and indefinite, and do not conform to the rules of this court in that they do not set out the evidence complained of. They do not suggest by way of reference to the record that of which complaint is made. However, by examination of counsels’ argument, we discover that the first assignment is directed to evidence of certain acts of Levi, which was admitted, doubtless, to prove an unlawful purpose on his part in making this mortgage. With some of these acts Sax had no immediate connection, yet they were competent for the purpose above indicated. In some of the acts so proven Sax was directly concerned, and, so far, they were properly admitted to prove his knowledge of Levi’s acts and the relations subsisting between them. One of the issues in the case involved Levi’s good or bad faith — lawful or unlawful purpose. The other issue was as to Sax’s participation in, or knowledge of, Levi’s faith or purpose, as disclosed by his acts and declarations at and prior to the making of the mortgage.

The second and third assignments of error, so far as we can gather from the argument, are directed to the admission of records of deeds and chattel mortgages made by Levi to the plaintiff and to members of Levi’s family. The contention seems to be that these records are subject to the rules governing the admission of secondary evidence, as copies of documents lost or destroyed. The statute establishes a different rule. A party desiring to use the record of any instrument properly recorded, that is, eligible to be recorded, is only required to show that the original is not in his possession or control, and this may sometimes be presumed by the existence of other facts.

At the conclusion of plaintiff’s brief, some references are made to the court’s instructions ; but as no assignment of error covers the matter of the court’s instructions, we do not deem it necessary or advisable to consider them.

We find no error in the matters challenged by the assignments of error, and the judgment is affirmed.