88 P. 639 | Idaho | 1907
Lead Opinion
This is an action in replevin. The plaintiff claims ownership and right of possession to seventeen hundred and eight head of stock sheep, and presented his affidavit and undertaking in said matter, and the sheriff seized the sheep and delivered them to him, and he has ever since kept possession thereof. The defendants denied plaintiff’s ownership and right of possession, and set up title to said sheep in one M. M. Barber, from whom they claim to
The transcript contains a bill of exceptions prepared on the question of taxing the costs; in fact, it is a record presenting to this court the question of taxing the costs. The appeal from the said order taxing the costs having not been taken in time and that appeal dismissed, counsel for respondent now moves to strike out said bill of exceptions, which motion is sustained as it has no place in the transcript after the dismissal of the appeal from the order taxing the costs. This leaves the appeal from the judgment to be disposed of.
It appears from the record in this case that one M. M. Barber had in his possession the sheep referred to in the complaint, and while so in his possession he gave the defendants a mortgage on them to secure the payment of borrowed money, and for better security gave the defendants possession of such sheep, and they were in the possession of the defendants at the time this action was brought. As above stated, the sheep were taken from the possession of the defendants and placed in the possession of the plaintiff. They
Under the facts of the case at bar it would have been proper for the jury to have determined the number of sheep to the possession of which the plaintiff was entitled; also the number to which the defendants were entitled, their value and the damages sustained by them by reason of the taking of said sheep by plaintiff, but it was not absolutely necessary for the jury to find the number of sheep the plaintiff was entitled to receive possession of, after they had found the exact number of said sheep to which the defendants were entitled. The right to the possession of said seventeen hundred and eight sheep was in issue, each party claiming all of them and the plaintiff being in possession. The jury by finding that the defendants were entitled to one hundred and eighty-three head of them, inferentially at least, found that the plaintiff was entitled to the remainder.
Counsel for appellant insists that as plaintiff retained possession of the greater number of sheep, the costs should be divided, as the defendants had only recovered about what they had offered to let them take judgment for. Plaintiff offered to permit judgment in favor of the defendants; he offered to let defendants take judgment against him for costs accruing to November 20, 1905, the date of said offer, and offered to let them take judgment for one hundred and eighty-two lambs and one ram or for $460, the value of said lambs and ram; “together with legal interest thereon from the seventeenth day of February, 1905, and defendants’ costs
We have examined, carefully all the matters set forth in this appeal, and as we find no sufficient error in the record to warrant a reversal of the judgment, the judgment of the trial court is therefore affirmed.
Concurrence Opinion
Concurriug.
I agree with my associate in affirmance of the judgment in this case, and base my concurrence upon the peculiar state of facts disclosed by the record herein. Were it not for the action and conduct of the plaintiff in this case to the extent that I déem he waived his right to insist upon an affirmative judgment in his favor, I should hold that it was error not to require a verdict determining the right of possession of all the animals in question. It was the plaintiff’s action. He was forced to the necessity of commencing an action to determine his right of possession of these animals. The fact that after he commenced his action he placed claim and delivery papers in the hands of the sheriff and obtained the possession of the property, did not adjudicate his right to the possession, and he was entitled, if he claimed it, to have a verdict and decree determining the right of possession to all the animals mentioned and described in his complaint. In this case, however, as said by my associate, the plaintiff and defendants seem to have proceeded from the very first of the trial upon the theory that plaintiff had all the animals, and that the only matter to be determined was how many of them the defendant was entitled to have returned. Having proceeded upon the trial on this theory and made no objection at any
For the reasons above assigned by me, I think the judgment as to costs must likewise be affirmed. The plaintiff served upon the defendants a written offer to allow the defendants to take judgment against him for the possession of a certain number of animals and for all costs accrued up to that time. He proceeded thenceforth upon the theory that if the defendants obtained any judgment, they would be entitled to recover all their costs. Having taken that view in the lower court, and having submitted his offer on the theory that defendants would be entitled to recover their costs, he cannot be heard to complain for the first time in this court on account of the trial court rendering judgment against him for costs after a verdict was rendered in favor of the defendants. "Were it not for this state of facts, I should hold that under section 4901, Revised Statutes, the plaintiff would have been entitled to his costs. I therefore concur in the conclusion reached by Mr. Justice Sullivan.