59 Kan. 743 | Kan. | 1898
Another consideration is that the court entertained the motion, and the ruling thereon implies a consideration of its merits. If it was not filed in time, it should have been dismissed, but the court denied the motion, and the denial implies a consideration. This inference is sufficient at least to overcome the presumption that the motion was overruled because it was not filed in time.
The action of the trial court in setting aside the general verdict, and in ignoring or setting aside special finding number 23i, which is to the effect that the defendants did not at the time of demand or at any time thereafter have the possession or control of
It appears that Wolfe & Son were merchants in Guthrie and Oklahoma City. They borrowed money from the banks and others, and subsequently, to secure these debts, which were admittedly just and honest, they executed a mortgage, and the mortgagees were given possession of the goods. Miller & Co. who had sold the goods to Wolfe & Son, did not demand the goods until attachments and other proceedings had been begun against Wolfe & Son, and in pursuance of writs which they held the officers had entered the stores and seized their goods. Notwithstanding the seizure, the mortgagees insisted upon the validity of their mortgage and were in the store at Guthrie a part of the time with the officers. Their agents how
The defendants answered with a general denial and alleging that the mortgage had been taken by them to secure an indebtedness, that the goods were transferred under the mortgage, and that the goods were afterward taken from the defendants under certain judicial proceedings in Oklahoma. Considerable proof was offered as to the possession of the goods when the demand was made, and much of it tended to show that prior to the making of demand the goods had been actually seized and possession taken by the United States marshal and the sheriff under writs which they held, and that at no time thereafter did the mortgagees have any real or actual possession or control of the goods. There is some confusion and conflict in the testimony as to who was actually in possession of the goods at Guthrie from December 19 to December 24, but it appears that Scott, who represented the mortgagees, was in possession of the store at Oklahoma City during that time.
“In order to entitle the plaintiffs to recover in this action, they must prove that at the time they made the demand claimed to have been made in this case of the defendants, that at that time the defendants had*752 the possession or control of the goods in controversy; for if at that time they did not have control or possession of the goods, and did not afterward acquire them, then they would not be liable.”
This must be treated as the law of the case, and in pursuance of this instruction the jury specifically found that the goods in the Guthrie store of the value of $1100 were not in the possession or control of the defendants at or after the time when the first demand was made for them. The finding, therefore, appears to be based on testimony and to be within the rule of law declared by the court, and it is not easy to say that it is immaterial or that the general verdict, which is consistent with it, should be set aside for any other reason than that the findings themselves were contradictory. As the case was in fact tried, the matter of possession was an important issue, and the testimony thereon was submitted to the jury upon an instruction the meaning of which is not in doubt. Involved in that issue and the finding thereon is the claim of $1100, nearly four-fifths of the amount for which judgment was rendered. Under the rule of law declared, the taking of the property by the mortgagees was not tortious, nor the withholding of possession a wrong against the plaintiffs below until there was a demand and a refusal; and there was no conversion then, if the mortgagees had no possession of the property actual or constructive and could do nothing toward giving plaintiffs possession of the same. The property was not concealed, and the plaintiffs had full opportunity to know who was in control of the same, and that it had been seized by the officers of the law on legal process. A demand on those who had control and the power to give possession of the property would have been more reasonable, and probably more effectual, than one upon those from whom
Our conclusion is that the court could not ignore or set aside an important special finding, and then render judgment on the remaining findings contrary to the general verdict.
The judgment will be reversed and the cause remanded for a new trial.