Samuel Whitman, Appellant, v. George W. Seaman et al., Respondents

Samuel Whitman, Appellant, v. George W. Seaman et al., Respondents. (Argued May 27, 1874; decided September term, 1874.) This was an action to recover damages for the alleged wrongful issuing of an execution by defendant Seaman, a justice of the peace, in favor of defendant Fallon against plaintiff, after an appeal had been taken by plaintiff from the judgment, by virtue of which execution plaintiff’s property was levied upon and taken. The material fact litigated was as to whether the requisite fee for making the return was paid to the justice within the time prescribed by law, and, as bearing upon this, as to when the judgment was actually rendered. Seaman was asked, as a witness, when the judgment was rendered, and for how much. This was objected to by plaintiff, on the ground that the docket should .be produced. The objection was overruled. Held, error. Seaman swore that the judgment was rendered the thirtieth of May for fifty-two dollars and ninety-eight cents damages and four dollars and fifty cents costs. Evidence had been given on the part of plaintiff that on the second of J une he paid Seaman two dollars for “ appeal papers” and two dollars for costs, and that the latter said that was all he claimed. Upon his cross-examination he was asked to state how the four dollars and fifty cents was made up. This was objected to, and objection sustained. Held, error; that it was pertinent to the issue, as it might have been made to appear that the legitimate costs were not more than what was paid by plaintiff. Plaintiff, testified that the case was tried May thirty-first. Evidence was given showing tender to Seaman within the time, taking the last date as the date of the judgment. The court directed a dismissal of the complaint. Held, error; that the ease should have been submitted to the jury. A. H. Dailey for the appellant. Wm. H. Benedict for the respondents. [MAJORITY — Lott, Ch. C.,] Lott, Ch. C., reads for reversal. All concur. Judgment reversed and new trial ordered.