123 Minn. 525 | Minn. | 1913
Action in replevin to recover possession of certain cord wood. Plaintiff had a verdict and defendant appeals from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.
Plaintiffs cut mixed cord wood and other timber upon a certain 80-acre tract
He hauled away certain cord wood piled upon this land, and plaintiffs claiming to own it brought this action. They offered no evidence of title, except the record in the lien proceedings and the sheriff’s return upon the executions.
There is not a scintilla of evidence that any of the woo.d taken by defendant was part of the wood upon which plaintiffs had a lien, or part of the wood sold to them under the execution sales. It appears that the wood claimed by them and the wood hauled by defendant was piled upon the same 80-acre tract of land. Nothing more. It does not even appear that the wood taken by defendant was cut upon that land. Neither does it appear that either Ward or Bosco ever had or claimed any interest in it or ever had anything to do with it.
There is an utter absence of any evidence tending to identify the wood taken by defendant as the wood involved in the lien proceedings or sold under the executions. As the burden is upon plaintiffs to identify the wood claimed by them and establish their title thereto, the verdict cannot be sustained. Another trial may supply the missing evidence, and for that reason the order denying judgment notwithstanding the verdict is affirmed, but the order denying a new trial is reversed and a new trial granted.