Majority
p. 611WILLIAM F. HAMMOND, et al., Executors, &c., Plaintiffs and Appellants, v. CHRISTIAN SCHULTZE and FRIDA SCHULTZE, Defendants and Respondents.[1]
Headnote
I. Appeal.1. When questions of fact not considered on.
Where the appeal book shows that upon the trial plaintiff’s counsel excepted to the refusal of the court to permit the whole case to go to the jury, it nowhere appearing that a request to that effect was made, and it affirmatively appearing that the only question which the court was requested to submit was a specific question, not involving the whole case, according to plaintiff’s view; it also appealing that no motion for a new trial, on the minutes or on a case, was made.
I-Ield,
The court, on appeal from the judgment, cannot consider questions of fact.
H. Trial.
1. Evidence admitted upon, contrary to section 829, Code Ciy. Pro.
Upon the trial, one of the defendants admitted that she had pos
p. 612Before Sedgwick and Freedman, JJ. Decided June 13, 1879.
session of the property, for the conversion of which the action was brought, but claimed to have a lien upon it, under the statutes of New Jersey, for rent due her by plaintiff’s testator. To substantiate said claim, she was allowed, against - plaintiff’s objection and exception, to prove, by her own testimony, a hiring, by the deceased, of a part of her house, at an agreed rental, the occupation thereof, &c., &c.
Held,
error, as involving personal transactions between the deceased and a party interested in the event, as against executors.
Abo held, that defendant’s claim that plaintiff opened the way for such testimony, by examining one of the executors on the same point, is not well founded, he having been examined simply as to the language used by the defendants in the assertion of their claim for unpaid rent, as a ground for refusing to give up the property when demanded.
HI. Trover.
1. When defendant not liable in.
A mere demand and refusal to deliver, without proof either of possession or control over the property claimed to have been converted, held, not sufficient to make the defendant, Christian Schultze, liable in trover herein. This, though the refusal was based upon the claim of a lien. If there was any wrongful detention, it was by the other defendant.
Appeal by plaintiffs from j adgment.
This action was brought by the plaintiffs, as executors of the last will of William II. Hammond, deceased, to recover damages for the conversion of certain personal property.
The defendants interposed separate answers to the complaint.
Defendant, Christian Schultze, admits the former ownership of the property by deceased, and sundry unimportant averments, and denies all other allegations. - -
p. 613
The defendant, Frida Schultze, admits the same facts, and also the detention of the-property in question by her, and claims, as an affirmative defense, that she had a lien thereon under the laws of the State of New Jersey, for rent due her from deceased.
H. D. Betts, for appellants.
William Bro. Smith, for respondents.
wrote (holding as above), for affirmance with costs, as to the defendant, Christian Schultze, and for a reversal and new trial as to the other defendants, costs to abide the event.
Sedgwick, J., concurred.