99 P. 589 | Kan. | 1909
The opinion of the court was delivered by
O. L. Jones executed a chattel mortgage to,the Geiser Manufacturing Company, which was filed in Kingman county December 5, 1903. On June 6, 1905, in an action against Jones the mortgaged property was attached, and later it was sold, under process based on the attachment, to James F. Murray. The mortgagee brought replevin against Murray, and re
The real controversy was whether Kingman was the proper county in which to file the chattel mortgage. The plaintiff contended that Jones was at the time a resident of that county, but that, if he was not, he was a non-resident of the state, and Kingman was still the right county because the property was situated there. The defendant maintained that Jones was a resident of Oklahoma and that the property was situated in Reno county. These issues were submitted to a jury, which returned a,general verdict on which judgment was rendered.
The defendant sought also to question whether the mortgage was in fact filed with the register of deeds of Kingman county, and whether, if so, it remained on deposit with that officer until the attachment was levied. To prove th'e fact of filing the plaintiff introduced a document certified by the register of deeds to be a copy of a chattel mortgage and renewal affidavit, as the same appeared of record in Book K of chattels, at page J, in his office. The copy referred to showed an indorsement signed by the register of deeds reading: “This mortgage was filed this 5th day of December, A. D. 1903, at 11 o’clock A. M. and indexed in Book K, on page J, of chattel mortgages.” The form of the certificate may be open to verbal criticism, but this evidence tended to show the filing of the mortgage, and, not having been controverted, must be deemed to have established it.
The claim that the mortgage was not shown to have remained on deposit in the office of the register of deeds was based upon the assertion that after the replevin suit was begun, in the course of taking depositions in another county, the plaintiff’s attorney produced the original in his own control. The defendant argues that this unexplained and unauthorized absence of the document from the possession of its official custodian destroyed the presumption that would otherwise have
No special findings were returned, and the verdict may have been and probably was based upon the conclusion that Jones was a resident of Kingman county when he executed the mortgage, the question of his residence having been the principal one submitted to the jury. He was unmarried, had previously been, a resident of Oklahoma, and spent a part of the time there and a part in Kansas. The evidence left his legal domicil in much doubt, and it was manifestly important that the jury should be advised just what considerations the law made controlling in this regard. The plaintiff submitted a request for an instruction giving a substantially correct definition of what constitutes one’s legal residence, but including some statements with regard to the filing and retention of the mortgage by the register of deeds—matters, as already explained, not really in issue. The request was refused and the jury were asked to determine whether Jones was a resident of Kingman county without being told how that question would be affected by his acts and inten
The judgment is therefore reversed and a new trial ordered.
