26 Kan. 320 | Kan. | 1881
The opinion of the court was delivered by
This is an action for replevin, in which the plaintiff here was plaintiff in the court below, and the property sought to be recovered a general stock of merchandise taken by the defendant in his capacity as sheriff of Elk county, by virtue of certain orders of attachment issued out of the district court of said county against the firm of Carter & Hemenway. Verdict and judgment below were for defendant. A motion for a new trial was duly made and overruled, and now this case is before us for review.
The plaintiff claims as purchaser from one of the firm of Carter & Hemenway, two or three days before the levy of the attachment. In support of his claim he put one Hanson on the stand, who testified that on the day of the levy he was in actual possession of the goods and the building in which they were situated; that he held such possession for the plaintiff as his servant or agent; that such possession was absolute and exclusive; and that while so in possession the defendant made the levy. This was the scope and limit of the inquiries put to the witness upon the direct examination; in other words, the plaintiff was resting upon evidence of possession, with its consequent presumption of title as the basis of his right of recovery, and this possession was limited to the very day of the attachment. Upon cross-examination the witness testified, over the objection of plaintiff, that he had been in the store for about two months; in whose employ
Was such cross-examination extended to limits so improper ás to be erroneous and compel a reversal of the judgment? We think not. A cross-examination is not
But further, plaintiff does not challenge the competency of such testimony, but only the order or manner in which it was introduced to the jury. Section 275 of the code prescribes a certain order unless the court for special reasons otherwise directs. Upon this, counsel argue that if any change was made in the order of proof, special reasons therefor should be stated, so that this court may pass upon their sufficiency. We think the order of proof is a slight matter — that the competency is the important fact; and it is seldom that a case will be presented in which the judgment of the district court will be reversed because of the manner or order in which competent testimony is presented. If the testimony is such that a jury ought to consider it, the time or manner in
A • further objection is this, that the records of certain judgments against Carter & Hemenway were admitted in evidence. The objection to these judgments is, that the attachments upon which they were based were not in evidence, and also that it was not then shown that the property seized by the sheriff belonged to both or either of the defendants in the attachment suits. The objection is not well taken. Whether the judgments should be admitted in evidence before proof of the ownership of the property attached, was a mere question of the order of the admission of testimony, and as
Other questions made by counsel, save one, are fully covered by repeated prior decisions of this court, and need not be noticed. That single objection is, that the jury found the value of the stock of goods as a whole, and did not find the separate value of each particular article in the stock. Plaintiff claims that he has a right to return such portion of the stock
We see nothing else in the record that requires notice. The question in cases of this kind is almost always one purely of fact, and settled by the verdict of the jury. In this case, upon the testimony we think the jury found as it ought to find, and therefore the judgment must be affirmed, and it is so ordered.