Claflin v. Beaver

(after stating the facts as above.) In this cause a motion having been made by the defendants that the verdict be set aside and a new trial be granted therein, for the reason, among others, of alleged error of the court in excluding proof offered on the trial by the defendants that a part of the goods taken on the writ of replevin in this case and delivered to the plaintiffs, although .covered by the general description in the petition and writ, were not purchased of the plaintiffs, or that, if purchased, had been paid for prior to the institution of this suit; and the said motion having been argued by the respective counsel for the parties, upon consideration thereof, it having appeared upon the trial of the cause that the foundation of the right to recover the goods for which the action was brought consisted in an alleged fraud on the part of the purchasers, who are defendants, in procuring a sale thereof to them from the said plaintiffs, and inducing such sale, it is now here ordered that said motion be granted, and the said verdict be vacated in so far and to the extent following only; that is to say, the parties may frame an issue upon the question whether some part of the goods taken by the marshal upon the writ in this cause, and delivered to the plaintiffs, were not purchased of the plaintiffs, or, having been purchased, were paid for prior to the beginning of this suit, and, if so, what was the value thereof at the time they were so taken by the marshal, including interest thereon to the date of the trial of the issue herein directed. Said issue may be framed upon a petition to be filed by the defendants within 30 days herefrom, and the answer of the plaintiffs to be filed within 10 days after notice of the filing of said petition, and such further pleading as the nature of said answer may require, according to the practice in the courts of the state of Ohio. See Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. Rep. 27; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. *261355; Gumbel v. Pitkin, 8 Sap. Ct. Rep. 379, (January, 1888,) opinion by Matthews, J. And it is further ordered that the verdict heretofore rendered stand as a finding of the original issues in favor of the plaintiff's, as to all the goods described in the petition and taken on the writ, except such as shall be found upon the issues now directed to have not been purchased from the plaintiffs by either of the defendants, or, if so purchased, were paid for prior to the beginning of this suit, to the end that upon the coming in of the finding of the issue to be framed upon the aforesaid question such judgment may be entered as all the facts and the rights of parties may require.