Osner v. Dieterle

Opinion by

Mr. Justice Green:

The verdict of the jury established that Charles Osner was the owner of the leather in question. By the judgment for the *237defendant on the point reserved he has been deprived of the benefit of his ownership. If the facts stated in the point, or conclusively proved on the trial, justify the judgment, the plaintiff must submit to the consequences; but if not, the judgment- must be reversed.

The case turned upon the question of notice to the plaintiff Charles Osner, of the attachment proceeding against Yollrath as garnishee of Frederick Osner. It was neither alleged nor proved that any notice was served upon Charles Osner. .The sole allegation of the defense was a notice to Mr. Stutzbach who, it is claimed, was counsel for Charles Osner, and therefore that notice to him was obligatory upon his client. In the point reserved there is no statement that Mr. Stutzbach was counsel for Charles Osner, but a notice in writing to him dated May 3,1883, is stated in the reservation; and there was such a notice in proof on the trial. In that written notice the writer states that he gives the notice to Mr. Stutzbach because he understood him to represent Charles Osner. But Mr. Stutzbach was examined as a -witness on the trial, and testified that although he had represented Charles Osner in other matters, he did not do so in this, and considered he had no standing in the case.

What is still more to the point, he testified that happening to be in court when judgment against the garnishee on his answers was asked for, he expressly stated to the court that he thought he had no standing in the case. As there is no proof that he was of counsel for Charles Osner in that matter and at that time, his distinct disavowal of the relation before judgment was taken was notice to the garnishee that the relation did not exist, and the garnishee’s subsequent assent to judgment on the answers and his payment of the judgment were at his own peril.

In this condition of the record and of the testimony, we cannot hold Charles Osner bound by the notice served upon Stutzbach. The reserved point does not state the existence of the relation ; the written notice only refers to it as an understanding of the writer and the witness himself disproves it. The fact that the witness subsequently brought the present action to recover the price of the leather does not prove that he was of counsel in reference to this matter at the time the judgment was taken.

Judgment reversed, and judgment is now entered on the verdict in favor of the plaintiff, for $207.84, with costs.