Iowa County WI Archives Court.....Mitchell, Ellsworth Mitchell Vs Richard J. November 16, 190 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/wi/wifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Nancy Poquette npoq@hotmail.com January 2, 2007, 12:10 am Source: Univ. Of Wisconsin At Platteville, Iowa Series 24, File #2049 Written: November 16, 190 Recorded: September 29, 1908 Ellsworth Mitchell vs. Richard J. Mitchell To the Circuit Court for Iowa County: In pursuance of the notice of, and affidavit for appeal hereto annexed which were presented to me on the 16th day of November 1907. J.J.P. Hawkins, a justice of the peace in, and for Iowa County, do return herewith to said Circuit Court, all of the testimony, proceeding and judgement in the action of Ellsworth Mitchell against Richard J. Mitchell, tried before me, in which said appeal is taken, together with the process, pleadings, undertaking, and all other things in any office touching the aforesaid testimony, proceedings and judgement, to wit: The following is a transcript of the docket in said action, showing all proceedings therein. State of Wisconsin, Iowa County City of Mineral Point, In Justice Court before J. P. Hawkins, justice of the peace, dated Oct,23rd, 1907. Ellsworth Mitchell, plaintiff, vs Richard J. Mitchell, defendant. Summons issued this 23rd day of October A.D. 1907 and returnable on the 31st day of October A.D. 1907 at my office in the City of Mineral Point at ten o'clock in forenoon, and give to James Thrasher, Chief of Police of the City of Mineral Point for service. Summons duly returned, endorsed as follows: State of Wisconsin, Iowa County I hereby certify that I served the within summons at the Town of Mineral Point in said county of Iowa on the 25th day of October A.D. 1907 on the within named defendant Richard J. Mitchell by reading the same to him, and delivered to, and leaving with him, personally, a true copy thereof. "James Thrasher" Chief of Police, City of Mineral Point Case called at my office on Oct.31, 1907 at ten o'clock in the forenoon. The plaintiff appeared by Fiedler and Fiedler his attorney, and the defendant appeared by T. M. Priestly, his attorney. The plaintiff makes an oral complaint and alleges that the defendant in the spring of 1907 at Iowa County, Wisconsin wrongfully took a steer belonging to the plaintiff, of the value of $70.00 and wrongfully and unlawfully converted the same to his own use, and the plaintiff asks judgement for $70.00 damages and the costs. The defendant makes an oral answer by his attorney T. M. Priestly and denies each and every allegation in the complaint of the plaintiff herein, and therefore asks judgement, that the complaint herein be dismissed and for costs. And by mutual consent, this case is adjourned to November 13th, 1907 at my office at 10 o'clock, in the forenoon. Case called at my office November 15, 1907, 10 o'clock in the forenoon. The plaintiff appeared in person, and by Fiedler and Fiedler, his attorney. The defendant appeared by TM. Priestly, his attorney. The Plaintiff made his proofs by himself, and Amos Kies, a witness sworn for him, and the evidence reduced to writing and filed. No evidence was offered by the defense. After considering the evidence, the Court finds in favor of the Plaintiff and against the defendant. The court renders judgement in favor of the plaintiff Ellsworth Mitchell, and against the defendant Richard J. Mitchell. George Mitchell sworn. Son of Richard J. Mitchell, the defendant. "Father has a pasture in the Town of Linden, the Wagner Farm. Took some steers out to that farm last spring, we drove them past Ellsworth's pasture. Ellsworth Mitchell sworn as plaintiff: "Lost a steer last spring. Got it from Platteville from Amos Kies. Got 20 head from Kies. It was one of the 20 that I lost. I enquired for the steer of the Nic____. I enquired of Richard Mitchell's boys. Searched everywhere for the steer, but couldn't find him. I found where the steer was. he was over to Wagner's in Dick's pasture. I caused a demand to be made through my attorney for the steer. He (Dick) refused to give up the steer. I saw the steer the final Sunday in July. I was able to pick out the steer in Dick's pasture. Joe Mitchell was with me this time. I was positive that the steer that I picked out was my steer. Dark red steer, white spot, the body short, compact. Steer of good quality, extra good, would weigh 1400 pounds in my pasture (?) The price of the steer of that quality $5.56 per hundred weight, ______________________$70.00. "I had Amos Kies to come up and pick out the steer in September. I had 40 head when Mr. Kies came. He picked out 19 of the 20 steer that he sold me. Then we went over to the Wagner farm and Mr. Kies picked the other steer there. He picked out the same steer that I picked when Joe Mitchell was with me. "Kies went into the herd and picked out the steer without any help from me, or anybody else. I never got that steer back, or any pay for it. I am positive that that was my steer." Letter dated Nov.3, 1907 from Fiedler and Fiedler offered due evidence. " Mineral Point, Wis. Oct.3rd, 1907 Richard J. Mitchell, Mineral Point Dear sir,- "Ellsworth Mitchell some time ago lost a steer that he purchased from Platteville. He has been hunting faithfully for the steer but has been unable to find it. He tells us that the steer is in your pasture and that he has had the person come here from Platteville from whom he bought the steer and that person says it is the steer he sold to Ellsworth. "Ellsworth wants this steer and we will request you to notify us at once whether or not you are willing to give up the steer. You are probably aware that the finder of a stray animal is obliged under the law to post up notices, and for failure so to do he is liable for double the amount of damages sustained by the owner of the animal. you will notify us at once what you are willing to so and oblige. Yours truly, Fiedler and Fiedler" Cross exam by T. M. Priestly. "I bought the ____ Feb'y ______ in Platteville business ?farmer?. Drove the cattle to Mineral Point. I took them out on the Biddick place. Coming 3 years old, some 2 years old. This steer was a 3 year old. Missed this steer about 2 months after I got it. I _________________. I had 4 in this pasture at this time. Have 40 of them now. Did not advertise this steer when I lost, did not post any notices when I lost. I made inquiry of Fred Mitchell, Dick's boy. I _____ the steer, __- him back did not _________________inquire about the __. This was the first inquiry that I made. I asked Joe Bennett, Mr. ____ Vivian, Dick Darlington (?), John Martin, Hugh and John McDermott, Ellsworth Lawrence, ___ Spitzbarth, Pete Ketter (?). When I asked Peter Mitchell, he said there was no steer but their own. I described that steer as I described it to my attorney. Fred came to me and wanted me to point out the steer that I claimed. My brother was there (Lee M.) I did not go with him and point out the steer, this conversation. No one else ever came. Fred asked me a second time if I would go over there and point out the steer. He _____ me to go with him. I did not go. I did not want to go after ____________ him. I have never been to pick out that steer. I never ___ Dick Mitchell on the subject. __________________________ my new steer was gone. I did not tell him there was white spots, he told me there was no steer there. I never went there to look for my steer. This was the day that Kies was there, that was about a quarter of a mile away. he __________________ as we were _______, did not hear him call, about 3:00 the afternoon ___ and left ___ after 4. Never lost any other steer, never lost any for a few days. The calves and on the Biddick place, moved 8 head about the first of June. I noticed the ______ before this time. The fence was down to get at the water. Nothing to prevent the cattle from roaming on the highway. I knew that the cattle were able to be lost, but I watched them, did not have time to fix fence, and could not do it sooner on account of the ice. The cattle I bought of Kies were not marked. This steer was not marked when I first found him, but when I went the 2nd time, marked with a hole in the ear. 24 or 26 of September and Kies was with me then. Joe Mitchell was with me the first time, near enough to touch him. The right ear was marked; a hole punched through, 3/4 inch and was healed up. I made close examination. I knew that they were not marked when I got them. Made sure when I examined it, the hole was all healed when I went the second time. My cattle are all marked now. Had eight. After 9 cost this steer 9 marked all that I could catch, eight. One not marked now. Will Mitchell of Dodgeville told me in the later part of June that my steer was over to Dick's place. I did not ask any of them for my steer until Oct.3, or make demand. Not busy haying all the time. Redirect As soon as I got I got through with my hay? buggy? and he was thrashing and could not get away but he came in a month or six weeks. I was waiting to see if Mr. Kies could pick out the steer. He came the later part of September and I made my demand on the 3rd of October. My lawyers were busy in court and couldn't attend to it sooner. Not very friendly with Dick, but always spoke when we met. I made an offer to Fred Mitchell to have Kies come if he could pick out the steer, if they would give him up. They refused to do this. Fred did the refusing. I made him this offer when he came to my house. I was willing to decide my claim by what Kies said. Amos Kies. Platteville. Farmer. I sold to Ellsworth Mitchell 20 head of steer mostly coming 3, some coming 2. They were d___ 1st of March. Mr. Mitchell came to me and bought the cattle. The next time saw him he came to see me in reference to some steer. At his request. Later part of September. I saw the cattle that he bought of me. I found 19 head of cattle that he bought of me. I found the other one at the Wagner. I went in among the cattle and picked out the steer. I told Mitchell to keep back, and I went in and took out the steer that was missing. I knew the steer from the quality and the color. The steer was of a good quality. a dark red with white spot on its body, a very heavy brush on its tail and the end of it was white. The ?antlers? was very wide. I am positive that it was one of the steers that I sold to Mr. Mitchell. I picked the 19 steers out of Mr. Mitchell's pasture and the one out of Dick Mitchell's flock. Cross examine- Been in the cattle business 10 years (35 years old). Farmer and s___ raising. Got 90 head of cattle now. Had about 65 or 70 at that time. Did not raise these cattle. I bought this steer of my brother, had him about 8 months. I sold these cattle the last of February. They would improve 250 to 400 in a season. I can pick every steer out of that flock. I have been able to pick out my own out of a flock at other times. General finish and appearance. The steer was larger. About a carload in the pasture. Not all wild. This steer was very quiet. Not marked when I had ____ but marked when I saw him there. Not sold any but had bargained for some. Kept them in mind. I could tell each steer where I got them. No record of them marking. Went around and pointed the steers out. He told me that he had 40 steers. This steer was the ?Ameliot? steer that I ever had and was always in better condition. The weight was 1400 lbs. Not acquainted with Dick Mitchell. Didn't hear him call toward. Call the steers were paid for on delivery. I was in a hurry to leave the pasture to get back to catch the train. The steer that I picked out was the steer that I sold to Ellsworth Mitchell. Yes I found that this far____ steer was missing when I examined the flock at Ellsworth's pasturage. I went among the cattle alone. I don't know if Ellsworth saw the mark__ this time or the last. I examined it again and found the mark in the ear, large enough to put my finger through. No other marks after 4 m_____. I could go to a flock and pick out a number of cattle without any difficulty and sometimes only see them once in 6 months. Putting on flesh make some difference in their appearance. The steer in question improved more than any of them. Redirect The flesh does improve the quality. The shape straight on the back rounding out the ribs. I saw him once a week while in pasture and every day whenever in the yard. I had particular occasion to notice this steer, easy to keep. Rest State of Wisconsin, Iowa County, in Circuit court Ellsworth Mitchell, Plaintiff vs. Richard J. Mitchell, Defendant The deposition of Richard J. Mitchell, the defendant, taken before J. B. Reynolds, Court Commissioner, on the 13th day of June, 1907, at 9 o'clock a.m. Fiedler and Fiedler appeared as attorneys for Plaintiff and Spensley- McIlhon and Priestly appeared as attorneys for Defendant. Richard J. Mitchell being sworn testifies as follows: Q. You are the defendant? A. Yes. Q. Mr. Mitchell do you own a farm in the town of Mineral Point? A. Yes. Q. How many acres? A. Well, there is three hundred and about sixty-three or sixty-four acres. Q. Do you own a farm also in the town of Linden? A. Yes, sir. Q. How many acres? A. Well, about 243. Q. That Linden farm is generally known as the Wagner farm? A. Yes, sir. Q. Did you own these farms during all of 1907? A. Yes, sir. Q. Did you have cattle on both farms? A. I did. Q. On May 1st, 1907? A. Yes, sir. Q. How many three-year-old steers did you have on your Mineral Point farm May 1st, 1907? A. I had fifty-seven head. Q. Did you have fifty-seven head of three-year-old steers on your Mineral Point farm on May 1st, 1907? A. Yes, sir. Q. How many two-year-old steers did you have on your Mineral Point farm on May 1st, 1907? A. Well, I think there was about twelve that was right two years old, well, about twelve, I think. Q. Are you certain about it? A. Well, yes I am certain about it. Q. How many three year olds did you have on the Wagner farm on May 1st, 1907? A. Fifteen. Q. How many two-year-old steers did you have on the Wagner farm May 1st, 1907? A. Not one that I could swear to. Q. Did you leave those fifty-seven three-year-old steers on the Mineral Point farm during the summer of 1907? A. No, sir. Q. What did you do with them? A. Took them on the Wagner farm. Q. When? A. Well, I took them there along in the first week of May. I think it was somewhere's about that. I could not say up to a few days or so. Q. After you took these fifty-seven three year olds steers to the Wagner farm in the first week in May, did you leave them there all summer? A. Yes, sir. Q. Did you leave the fifteen three-year-old steers on the Wagner Missing an entire page Forty-three from Uglow Baker. Q. When did you buy those two three year olds steers from Mr. McDermott? A. Well, I think it was in November 1906. Q. When did you buy the ten from Gribble? A. It was in January sometime about the 20th or 22nd, 1907. Q. When did you buy the forty-three of Uglow Baker? A. Why, it was about the 24th or 25th of February, 1907. Q. Did you have all of those steers, seventy-two head of three year old on May 1st, 1907? A. Yes, sir. Q. And for some time before that? A. Well, I just told you the dates. Q. And you had also the twelve two year olds steers on May 1st, 1907? A. Yes, sir. Q. How long before that? A. Why, I raised them from a calf. Q. Now, are you not mistaken about the number of steers that you had on May 1st, 1907? A. No, sir, I am not. Q. According to your testimony, you must have had eighty-four steers? A. Well, maybe I had more than that. I had that many. Q. Now, did you not only have eight steers in the town of Mineral Point on May 1st, 1907? A. I don't know. Q. Did not the assessor in 1907 ask you how many cattle of different ages you had? A. Well, I do not recollect whether he did or not. Q. Did you not sign for the assessor a statement of personal property that you had in the town of Mineral Point on May 1st, 1907 showing that you had only eight two-year old cattle? A. I don't recollect, I don't think I signed a statement? Q. Is not that your signature, Mr. Mitchell? A. Yes, sir, that is mine. The statement shown the witness is marked Exhibit A, and I show you now what is marked Exhibit B by the stenographer and which purports to be a statement of personal property owned by you and subject to taxation in the town of Linden for the year of 1907. I ask you if you signed that? A Yes, that is my writing. Q. Do you know how many steers it is stated you had on that statement? A. No, I do not. Q. I will now show to you Mr. Mitchell, and ask you if it is not a fact that the number of cattle from two to three years old contained in this statement is fifty-two? A. Yes. Q. Is that correct? (indicating) A. I think there is fifty-two there. Q. Well, that is all on the statement is it not? A. Yes, that is all there is marked there. Q. So that you are mistaken, Mr. Mitchell, when you think that you gave to the assessor fifty-seven head in the town of Linden. A. I did not say I gave him fifty-seven head. Q. You said you thought you did. A. No, I did not. Q. Now, it appears from your testimony here today that you actually owned eighty-four steers, counting two-year-old and three year old steers on May 1st, 1907? A. Yes, sir. Q. It appears from the statements which you signed and delivered to the assessors of the town of Linden and Mineral Point that you owned only sixty head of steers, two year old and three year old on May 1st, 1907? Is that not true? A. It is on the paper. Q. Did you know before this action was commenced how many steers you had in 1907? A. Yes, sir, I did. Q. On May 1st, 1907, did you know how many steers you had? A. Yes, sir.. Q. Then how do you explain or account for the fact that you did not give the correct number to this assessor? A. How do I explain it, well, they were not put in. Q. Did you know before this action was commenced that Ellsworth Mitchell claimed that you had one of his steers? A. No, sir, I never heard anything of it until I got your letter. Q. Well, that was before this case was commenced? A. Well, when I got your letter. Q. Where is Ellsworth Mitchell's place located with reference to your farms? A. Do you mean the Wagner farm? Q. And your other farm, yes? A. Well, of course the Wagner farm is west from Ellsworth. Q. And your Mineral Point farm is which way from Ellsworth Mitchell's? A. Well, it is north of it. Q. Did Ellsworth Mitchell buy part of the Biddick farm? A. Yes, sir, he did. Q. And you bought part of it also? A. Yes, sir. Q. Did you drive or cause to be driven any cattle past Ellsworth Mitchell's farm in May 1907? A. I did along the highway. Q. When was it in May? A. About the first week in May. Q. You drove those fifty-seven along there then, did you? A. Yes, sir, on the highway. Q. Who drove those fifty-seven? A. Myself and the two boys. Q. Which two boys? A. Garfield and Fred. Q. Did you see Ellsworth Mitchell's steers then? A. Yes, sir, I did. Q. Where were they? A. Well, he was right by the gate and they were in his pasture. Q. Did you drive or cause to be driven past Ellsworth Mitchell's.... missing page or words Q. Can you recall now what you got for the second shipment? A. No, sir, I cannot. Q. Can you recall about the average weight of the cattle in the first shipment? A. No, I do not know. Q. Nor in the second Shipment? A. No sir. That is all Mr. Mitchell. signed, Richard J. Mitchell In Circuit Court, Ellsworth Mitchell, Plaintiff, vs Richard J. Mitchell, Defendant The defendant, by his attorneys, requests the following instructions to the jury: 1). If you find from the evidence that when the defendant was notified of Plaintiff's claim that he caused word to be sent to the Plaintiff to come and select his steer and the Plaintiff refused to do so, then there has been no conversion if the steer came into defendants possession inadvertently and your verdict should be for the defendant. 2). If the steer sued for by the Plaintiff got into defendant's herd of steers, without his knowledge and defendant did not know the particular steer plaintiff claimed, defendant would not be guilty of conversion of this steer until plaintiff had pointed out or caused to be pointed out to the defendant the particular steer he claimed and defendant had refused thereafter to deliver the same to plaintiff. 3). I further instruct you that even if you find that the defendant had one of Plaintiff's steers in his pasture inadvertently he would be justified in refusing to return the same on a general demand not specifying any particular steer until the plaintiff had shown that he was the owner of the particular animal in question. 4.) A mere refusal to deliver property found, for the reason that the finder does not know that the claimant is the owner, is not conversion. Respectfully submitted, Sept.29, 1908 Spensley, McIlhon, Priestly File at: http://files.usgwarchives.net/wi/iowa/court/mitchell31gwl.txt This file has been created by a form at http://www.genrecords.org/wifiles/ File size: 21.7 Kb