Brown v. Holmes, 13 Kan. 482

Brown v. Holmes

13 Kan. 482 | Kan. | 1874

The opinion of the court was delivered by

Brewer, J.:

This was an action of replevin in the district court of Chase county, brought by plaintiffs in error to recover the possession of certain Texas cattle claimed by them by virtue of a chattel mortgage given by one Ledrick, the owner. The defendant asserted no title, but simply claimed a lien for wintering the cattle. Three errors are alleged.

i.Replevin; defusai. Plaintiffs sought to prove a demand for the possession, and a tender of the charges for keeping the cattle, made after the commencement of the action, but the court ruled out the testimony. We see no error m this. Under our code the gist of the action of replevin is the wrongful detention, and this relates to the time of the commencement of the action. Town of Leroy v. McConnell, 8 Kas., 273, 276; Wilson v. Fuller, 9 Kas., 176. If demand and refusal were necessary to make the detention by the defendant wrongful, they had that-effect only from the time they were made; and if defendant’s possession was rightful at the time of the commencement of the suit, the action failed, and could not be upheld by proof that this rightful possession was changed into a wrongful one by a subsequent demand and refusal. Such testimony would therefore be improper. On the other hand, if the defendant’s possession was wrongful, a subsequent demand and refusal were unnecessary, and the testimony was immaterial. In either case there would be no error in ruling it out. We may say, in passing, that from the facts as disclosed in the record we think the defendant’s *492possession was rightful. He had a lien for. the wintering of the cattle, and was entitled to the possession until his charges therefor were paid. This lien was paramount to the rights of the chattel mortgagee, as well as those of the mortgagor; nor would the fact that the mortgagor had, as is claimed, been guilty of a breach of duty toward the mortgagee in removing the cattle from the county in which the mortgage was given and filed, into another, affect the validity of this lien.

2 chattel mortloilpiionof prppeity. Plaintiffs offered their mortgage in evidence, but the court refused to receive it. It is insisted that this “ mortgage is so general in its terms, and uncertain in the description of the ProPerty mentioned therein, as to be void for uncertainty.” The description is as follows: “23 heac[ of beeves, four-year-old Texas cattle; 572 three-year-old Texas cattle; 29 two-year-old Texas cattle, * * * said goods and chattels now being in possession of the said party of the first part (Ledrick) in Morris county, Kansas.” We think this sufficient, .within the rule laid down in Golden v. Cockrill, 1 Kas., 259. In that case the language of Mr. Justice Swan, in Lawrence v. Coates, 7 Ohio St., 194, is quoted approvingly where he says, “the principle to be deduced from these cases is, that any description which will enable third persons to identify the property, aided by inquiries which the mortgage itself indicates and directs, is sufficient.” And among the descriptions which seem to have met the approval of the court are these: “All the mules the mortgagor had in the territory of Kansas, or the same then in the care of H. C. Branch in Leavenworth county, Kansas.” The similarity between the last description and that in the present case seem to render unnecessary any further discussion of these questions.

*4933.Trial; order of evidence. 4. order of proceeding; piesumption. *492But counsel insist, “ that there is nothing in the record to show how in the remotest way possible, the introduction of this chattel mortgage as evidence was material to any of the issues framed in the case.” We think counsel are mistaken in this. True, the pleadings do not disclose how plaintiffs *493obtained their title, but the affidavit filed for the writ alleges that they claimed the cattle by virtue of this chattel mortgage; and so much of the testimony as is in the record shows that defendant knew of the existence of this chattel mortgage, and had himself received from the mortgagor the cattle to winter. Again, counsel contend that proof of title in the plaintiffs would avail nothing without proof of “ the wrongful detention of the property by the defendant,” and as no proof of the wrongful detention was made the error was immaterial. If it appeared affirmatively that there was no wrongful detention by the defendant, it might properly be held that any error in rejecting proof of title was immaterial. But in the trial, proof of title logically precedes proof of wrongful detention; and if, when offered, the evidences of title are rejected, it is unnecessary for the plaintiffs to proceed further and attempt to show a wrongful detention, for if the plaintiff has no claim to the property it matters not whether the defendant or some one else has. We are aware that the trial court has considerable discretion in deciding upon the order in which evidence shall be introduced pn a trial, and may in some cases properly refuse to let certain evidence in, until other testimony has been offered. In every such case however the reason for the decision should be given, or the dependence of the testimony rejected upon that not offered be apparent. When testimony, which in the natural order of things ought to be first presented, is rejected, it will be presumed that it was so reiected because of some ... ° supposed intrinsic defect therein. In this case no objection was made upon the ground that other testimony ought first to be offered. It was, that the mortgage was void for uncertainty, was immaterial, irrelevant, and incompetent. This was the objection that was sustained. True, the plaintiffs first attempted to prove demand and refusal, and failed, and then offered this mortgage; but it did not follow that because they had failed to prove a demand at one time they could not prove one at another, and were not prepared to do so as soon as they had established title in themselves. We think there*494fore that the court erred in ruling put this mortgage, and that the error was material. For this error the judgment must be reversed, and the cause remanded for new trial.

It does not seem to us that the record discloses any abuse of discretion in permitting the defendant to file his answer out of time. Spratly v. Putnam Fire Ins. Co., 5 Kas., 155.

All the Justices concurring.