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Felt vs. Amidon and others.

daughter going to Milwaukee with defendants or either of them? No. 3. Was the character of the daughter unchaste before she went to Milwaukee? No. 4. Did Rosa Felt, the daughter of the plaintiff, leave the plaintiff's house and service by the inducement and procurement of the defendants or either of them, without the plaintiff's consent? Yes. 5. Which of the defendants induced her to leave the plaintiff's house and service? Dodge, Amidon and Stacy. 6. What are plaintiff's damages resulting therefrom? Three thousand dollars."

A motion by the defendants to set aside the verdict and to arrest judgment thereon, was denied, and judgment for the plaintiff was rendered upon the verdict for $3,000 damages. Defendants appealed from the judgment.

Briefs were filed, by H. W. Lander and J. B. Hays for the appellants, and by E. P. Smith and H. W. Sawyer for the respondent; and the cause was argued orally by Mr. Hays for the appellants, and by Mr. Smith and Mr. Sawyer for the respondent.

LYON, J. On the trial of the action, the learned county judge admitted testimony on behalf of the plaintiff to the effect that the plaintiff's daughter expressed a desire, on different days and at different times after the two defendants left her in Milwaukee, to return to her home, and that at such times she wept. Testimony as to what she said and did in the presence of the two defendants at the house to which they took her, was also admitted on behalf of the plaintiff; but testimony of her statements at the hotel, made to a witness during the afternoon of the same day, was offered by the defendants and rejected.

The transaction upon which this action is founded is the alleged enticing of the plaintiff's daughter from her home by the defendants. That is the res gestæ, and all that was said or done by the actors in that transaction contemporary with

Felt vs. Amidon and others.

it, and which tends to illustrate its character, are parts thereof, and as such may be proved on the trial by either party. The law on this subject is so well stated in Lund v. Tyngsborough, 9 Cush., 36, that we cannot do better than to quote from the opinion in that case. "When the act of a party may be given in evidence, his declarations made at the time and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction, and so as to derive credit from the act itself, are admissible in evidence. The credit which the act or fact gives to the accompanying declarations, as a part of the transaction, and the tendency of the contemporary declarations, as a part of the transaction, to explain the particular fact, distinguish this class of declarations from mere hearsay. Such a declaration derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances, which may always be given in evidence to the jury with the principal fact. There must be a main or principal fact or transaction, and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and derive some degree of credit from it." Per FLETCHER, J, p. 42.

So also in Hadley v. Carter, 8 N. H., 40, it is said that "where declarations of an individual are so connected with his acts as to derive a degree of credit from such connection, independently of the declaration, the declaration becomes part of the transaction, and is admissible in evidence." And in our own case of Sorenson v. Dundas, 42 Wis., 642, it is said that "declarations are verbal parts of the res gesta, only when they are contemporaneous."

In the present case, the act of enticing-the res gesta undoubtedly terminated when the two defendants left the plaintiff's daughter at the house in Milwaukee to which they conducted her; and evidence of her declarations and the accompanying manifestations of grief made during subsequent

Rasmussen vs. McCabe.

days, is mere hearsay, and inadmissible within the rules above stated. The manifest purpose and tendency of such evidence were to convince the jury that the girl did not leave her home of her own free will, but that she was enticed therefrom by the defendants. We do not and cannot know but the evidence thus improperly admitted turned the verdict against the defendants. Because it may have had that effect, the error in admitting it is a material one, and fatal to the judgment.

By the same rules, evidence of the declarations of the girl relative to her leaving her home, and to the circumstances under which she came to Milwaukee, made during the afternoon at the hotel, was competent and should have been received.

Numerous other exceptions are preserved in the record, upon which errors are assigned; but we do not find it our duty to pass upon them.

By the Court. The judgment of the county court is reversed, and the cause remanded for a new trial.

RASMUSSEN vs. MCCABE.

JUSTICE'S COURT: GARNISHMENT: JUDGMENT. (1) Form of judgment in certain cases. (2) The judgment against garnishee herein treated as one for damages. (3) Such judgment erroneous but not void.

1. In garnishment in justice's court, where the justice finds that the garnishee holds property of the principal defendant, subject to be delivered to him at a future day, the judgment should first direct a delivery of the property to the court at such future date, for plaintiff's benefit; and, upon the garnishee's failure to so deliver it, judgment should go against him for the value. R. S., ch. 120, secs. 127-8.

2. The record of a justice's judgment against garnishees was: "Court orders that garnishees deliver said property into court on the first day of February, 1873, to be applied in judgment recovered by," etc., [naming the parties to the principal action]. "Damages, $60; costs on garnishee, $3.59, on original, $20.38." Held, that this must be treated as a judgment against the garnishee for damages.

Rasmussen vs. McCabe.

3. Where a J. P. having jurisdiction of a proceeding in garnishment, and of the parties, errs in his construction of the garnishee's answer, or in rendering judgment against him for damages, upon which execution is issued against the garnishee's goods, and the chattel claimed to belong to the principal defendant sold thereon, such judgment is merely erroneous, and not void; and title to the chattel passes by the execution sale.

APPEAL from the Circuit Court for Winnebago County. Action by O. Rasmussen, for the conversion of a wagon. Complaint in the ordinary form in trover. The answer, after a general denial, alleged in substance, that the wagon had been, on the 21st of December, 1872, duly adjudged to be the property of one Miller, in garnishee proceedings against the present plaintiff and one A. Rasmussen, after an execution on a judgment against Miller had been returned unsatisfied; that the judgment against the garnishees directed them to deliver the property into court on the 1st of February, 1873, to be applied on the judgment against Miller; and that afterwards the sheriff duly levied upon and sold the wagon upon said execution. It appeared on the trial, that the defendant McCube, and one Kipes, recovered a judgment in justice's court against Miller for $15.58, damages and costs; that in November, 1872, an execution against Miller was issued upon the judgment, which was returned on the 25th of that month, with the officer's certificate that he could not find property sufficient to satisfy it. The docket of the justice was put in evidence to show the garnishee proceedings thereupon had against the present plaintiff and A. Rasmussen. After reciting said execution and the return thereof, it contained the following entries:

"Nov. 25, 1872. On affidavit of John McCabe, one of the plaintiffs in the aforesaid case, on file, garnishee summons issued by J. M. White, deputy sheriff, returnable December 21, 1 P. M., at my office in said town.

"Nov. 25, 1872. Garnishee summons duly returned by J. M. White, deputy sheriff. All the property and effects in the

Rasmussen vs. McCabe.

hands of A. Rasmussen, garnishee, belonging or due to D. C. Miller, defendant, levied upon and attached by J. M. White, deputy sheriff, and said garnishee summoned to appear before the justice on the 21st day of December, 1872, at ↑ P. M., to answer touching his liability as garnishee. Summons served on garnishee Nov. 25, 1872.

"Dec. 21, 1872, 1 P. M. Suit called, and parties appeared and answered. Defendant A. Rasmussen sworn as garnishee; testimony on file. Garnishee sworn: he and O. Rasmussen were owing D. C. Miller a lumber wagon, to be delivered February 1, 1873, for the value of $60. Court orders that garnishees deliver said property into court on 1st day of February, 1873, to be applied in judgment recovered by John McCabe and Peter Kipes against D. C. Miller. Damages, $60; costs on garnishee, $3.59, on original, $20.38. [Signed by the justice.]

"April 21, 1873. Execution returned satisfied in full by J. M. White, deputy sheriff.

"Above judgment paid and discharged in full April 21, 1873. Received my costs. [Signed by the justice.] "Received my costs on

J. M. WHITE."

above judgment, April 21, 1873.

The affidavit by which the proceedings in garnishment were commenced, was as follows:

"In Justice Court, before J. H. Merrill, Justice. "John McCabe against D. C. Miller. "WINNEBAGO COUNTY - Town of Winneconne

SS.

"John McCabe, being duly sworn, says that he has good reason to believe that A. & O. Rasmussen has property, that is to say, money or credit in his possession belonging to D. C. Miller, the defendant, or that the said O. & A. Rasmussen is indebted to the said D. C. Miller, the defendant; and this deponent demands of J. M. White, deputy sheriff, that he summons the said O. & A. Rasmussen, in writing, to answer as garnishee in the suit of John McCabe against D. C. Miller."

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