title:
Alexander McLeod, Plaintiff in error, vs I C Ellis, Defendant in error, Brief of Plaintiff in error.
title:
116
creator:
Alexander McLeod
contributor:
Allen
contributor:
Ayer
date:
1890
publisher:
Washington State Supreme Court
type:
Civil
subject:
Remedies
language:
eng
format:
application/pdf
description:
Prior History: Appeal from Superior Court, Thurston County.Action by I. C. Ellis against Alexander McLeod, for the conversion of trees, commenced in the territorial court for the second judicial district of Washington Territory, holding terms at Olympia, in Thurston county. Both Pierce county, where the land was located upon which the trees had been cut and carried away, and Thurston county, where both parties to the suit resided, were portions of the second judicial district of Washington Territory. Prior to the joinder of issues and trial of the cause, the territory had been admitted to the union of states. Trial in Thurston county, and verdict and judgment for plaintiff, from which defendant appeals. The facts sufficiently appear in the opinion.Venue – Local and Transitory Actions – Conversion of Trees – Erroneous Instructions – The provision of § 50, Code of 1881, permitting trial in the county where an action is commenced, although not the proper county, unless the defendant files an affidavit of merits and demands that the trial be had in the proper county, applies only to transitory actions, and not to such as are local in their nature, and consequently actions for injuries to real property must be tried in the county or district where the real property lies.The term “district,” as used in § 47 of the Code of 1881, refers only to districts composed of two or more counties joined for jurisdictional purposes, where sessions of court are held in but one of the counties.In an action for the wrongful conversion of tress, which was not commenced nor tried in the county where the land was situated, a paragraph of the complaint, based upon § 602 of the code relating to trespass upon land, and claiming treble damages thereunder, may be rejected as surplusage, and the action treated as merely one of conversion, for the purpose of sustaining the jurisdiction of the court.An instruction that in a case where treble damages could be awarded under § 602, the jury could themselves assess the treble damages, is erroneous, as it is the province of the court,after the judgment; nor can such erroneous instructions be regarded as harmless, where the jury awarded a certain amount as “single damages,” as some of the jurors may have agreed to a large verdict for “single damages,” if other jurors consented to waive their view that the damages should be treble.
relation:
McLeod v. Ellis, 2 Wash. 117 (1891)
relation:
26 P. 76
rights:
These materials are public records. Please see Washington State Court Rules: General Rules 31 for details https://www.courts.wa.gov/court_rules/pdf/GR/GA_GR_31_00_00.pdf
