Bath v. Ingersoll

By the Court,

Thomas, J.:

There are several grounds of error alleged in plaintiff’s petition in error. The court below certainly acted properly in excluding certain evidence of Dawson and another, for it would have been at best hearsay, and nothing but hearsay, evidence. The district court is sustained by excellent authorities upon the question; that in an action of replevin a motion of nonsuit may properly be granted, while in this instance, as the plaintiff’s evidence not only failed to show title in the plaintiff, but also proved that the plaintiff had, some months prior to the commencement of the action in the district court, parted with all title thereto. We can therefore discover no error in the granting of the motion for a nonsuit.

The question of impaneling another jury is something of a novel one. To us it seems that it is fully sustained by the provisions of our code, and that it is a much better practice than the one of having the damages assessed by the jury first impaneled, they having heard all the evidence for the plaintiff, and liable to be at least slightly biassed by the same, while they would have no right to consider nor regard any portion thereof. While there may be a difference of opinion among the members of this court as to the *284right of the plaintiff, after sustaining a nonsuit, to appear and offer evidence or cross-examine witnesses upon the assessment of damages, it is apparent, from an examination of the whole record in this case, that no injury or injustice can have been done the plaintiff as our replevin law now stands. Under the general rule, therefore, there could be no reason for reversing this judgment upon that ground, even had the district court erred in refusing to allow the plaintiff to appear at the assessment of damages.

Judgment affirmed, and writ of procedendo ordered to Albany county.