FOSTER
v.
eRAWFORD.
991
:EIAWLEY, District Judge (orally). I think the form of the heading of the affidavit is Bubject to criticism. The form as to the affi· davit of the complaint is certainly much better. But the point that is raised is purely technical in its character, and it goes simply to the form, and not the substance, of the affidavit. The true interpretation to be given to that affidavit is that it is the affidavit of M. A. Murphy, who is the attorney for the corporation. It is not susceptible, in my judgment, of any other judicial interpretation. The law is well settled that an agent or an attorney may make the affi· davit. Grocery Co. v. Smith, 61 Mo. App. 665, 669; Drake, Attachm. §§ 93-93b, and authorities there cited; 3 Am. & Eng. Enc. Law (2d Ed.) 207, and authorities there cited. The motion to dissolve the attachment is overruled. FOSTER v. ORAWFORD.
(Olrcuit Court, D. Indiana. May 81, 1897.)
1.
REVIVAL OJ' JUDGMENT.
A proceeding to revive a judgment being a. colla.teral proceeding. DO error In such judgment is available aga.lnst it, if the court which rendered it was duly organized, and had jurlsd1c1Jlon of the sUbject-matter and the parties.
I.
LEVY OF EXECUTION-PRESUMPTIVE EVIDENCE OJ' SATISFACTION.
Though the levy of an execution upon sufficient personal property ls, prima fade, presumptive eVidence of the satisfaction of the debt, such presumption 18 overcome by proof, even without the return of the ofBcer, 1lh&t the property levied on was returned to the execution defendaDt.
992
80 FEDERAL REPORTER.
judgmenf read in evidence, and however irregular or wrongful the action of the court may have been, inasmuch as the court was a com.: petent court, inasmuch as it had jurisdiction over the subject·matter and over the person of the defendant, it had power to render a judgment whiCh would be unassailable, regardless of any intervening el'rors, when attacked collaterally. It follows that the judgment as to this debt is conclusive as to the amount of the indebtedness then existing. It was secondly insisted by counsel that the credit of $8,552 made upon the jUdgment was too small, fQr the reason that it appeared from the testimony of the defendant and the memoranda that he pro· duced on the hearing that there was actually collected on the col· laterals assigned the sum of $10,481, of which amount the present plaintiff, William Foster, received the sum of $9,957, and that he ought to be charged with that amount as of the 9th of June, 1888. Mr. Foster, howe-yer, testifies that he, was directed by the defendant, Henry Crawford, to make liberal provision by way of payment to Mr. T. C. Annabal, to Mr. Gordon, and to Mr. Cummings, who, as he testifies, were acting in connection with the litigation out of which the collection of taxes arose, in the interest of Mr. Crawford. If what Mr.: ;Foster says is true, Mr. Crawford delegl1ted power to Mr. Foster to determine what should constitute a reasonable payment that was to be made to these parties; and there has been no evidence to l!lhow that there was any fraud, or want of good faith or of fair dealing, on the part of Mr. Foster, in liquidating the claims and of Mr. Cumof Mr. Annaba! at $1,000. of Mr.. Gordon at mings at $100; and therefore the court cannot say, under the evidence, that Mr. Crawford was entitled to a larger credit as of the 9th of June, 1888, than $8,552, which he received. It is further insisted that shortly after the rendition of the judgment a levy was made, upon an execution issued on this judgment, upon a number. of engines upon the railroad in which the defendant, Mr. Crawford, was interested; and it is insisted that, inasmuch as there is no return of record showing what disposition was made of that levy, it amounts to a satisfaction of the judgment, and, consequently, that the court is without power to ascertain the balance, if any, due upon the judgment, and to order an execution to issue therefor. It is undoubtedly the settled law that a levy of an execution upon sufficient real or personal property is prima facie presumptive evidence of the satisfaction of the debt; but it is simply prima facie, and, like all prima facie cases, stands good simply until countervail· ing evidence is introduced. In this case Mr. Foster has testifiedand on that he is uncontradicted-that, shortly after the engines had been levied upon, they were surrendered into the possession of Harry Orawford, and that he took them away to Lafayette, where some ot them were repaired or rebuilt, and that they went into use upon the road in which the defendant is interested. I think that it is com· petent to show, without any return of ,the officer, by such evidence as was introduced in this case, that the engines were surrendered to the execution defendant, and I think such surrender completely answers the prima facie presumption arising from the levy.
MINNEAPOLIS, ST. P. <\ S. S. M. RY. CO. V. EMERSON.
998
The plaintift is entitled to a judgment for a revivor of the Judgment in the sum of $9,390, and to have an execution issued thereon for that amount; to all of which the defendant, by Henry CraWford, at the time excepted. The defendant prayed an appeal, and the bond is fixed at $10,000; no execution to issue until 30 days from this date. It is agreed by the defendant, as the condition of the staying of issuing execution, that no transfer of property in the state of Indiana shall be made pending the suit.
MINNEAPOLIS, ST. P. & S. S. M. RY. CO. T. EMERSON et aLl {Circuit Court of Appeals, Seventh Circuit. May 3, 1897.) No. 361. L RAILROADS-FIRES FROM LOCOMOTIVES-INSTRUCTIONS- CONFLICTING DENCE. '
EVI-
Whether a fire which destroyed plaintiff's property was communicated from one of defendant's locomotives or from a forest fire raging in the vicinity, held. to be a question of confiictlng evidence and debatable inferences, which the court properly refused to withdraw from the jury.
B.
APPEAL AND ERROR-RULINGS ON NEW TRIAL.
Rulings by the federal courts on motions for new trials are not reviewable on eITor.
In Error to the Circuit Court of the United States for the West· ern District of Wisconsin. This was an action at law by J. W. Emerson and D. W. Emerson against the Minneapolis, St. Paul & Sault. Sainte Marie Railway Company to recover damages alleged to have been caused to plaintiff's property by fire communicated from a locomotive. In the circuit court, verdict and judgment were given for plaintiffs, and the defendant sued out this writ of error. Michael H. Bright and Charles B. Keeler, for plaintiff in error. W. H. Flett, for defendants in error. Before WOODS, JENKINS, and SHOWALTER, Circuit Judges. WOODS, Circuit Judge. The defendants in error recovered a judgment against the plaintiff in error for damages caused by fire to timber lands and to logs, poles, posts, and other forms of timber accumulated near the tracks of the company's railroad at Romulus, Lincoln county, Wisconsin. The negligence charged in the declaration consisted in carelessly managing, operating, and running a locomotive, not properly equipped and constr'ucted to arrest sparks, so as to set fire to grass, weeds. and brush which had been mowed and carelessly permitted to remain upon the company's right of way until extremely dry and inflammable, whereby fire from a locomotive was communicated "to the property, premises, and effects of the plaintiffs, and burned and destroyed the same." The chief question is whether the court erred in refusing to direct a verdict for the plaintiff in error. It would be a laborious task, unavailing as a precedent or for any purpose, to summarize the evidence.' The contention of the plaintiff in error is: First, that the estab 1
Rehearing denied .Tune 17, 1897.
80 F.-63