Nebeker v. Harvey

21 Utah 363 | Utah | 1900

After stating the facts as above,

Bartch, C. J.,

delivered the opinion of the court.

The first question presented is one of jurisdiction. The appellants insist that the action was brought in the wrong county, and that therefore the court had no jurisdiction to try the cause. This question was raised for the first time on motion for a new trial, there having occurred no contention respecting it during the trial. The action is re-plevin, and it is alleged in the complaint that, on the 12th of November the cattle were wrongfully taken in Salt Lake City and County;- that on the same day demand was made for them; and that possession thereof was refused by the defendants and the cattle unlawfully withheld and detained from 'the plaintiffs. That, at the time the demand was made and suit brought, the cattle were in the city and county of Sait Lake, was substantially admitted in the answer.

Without referring to the evidence on this point in detail, it may be said that it strongly tends to support the allegations of the pleadings. The fact that the cattle were shipped from Milford, Beaver County, is immaterial, because the complaint states a cause of action in the detinet. It charges that the possession of the cattle was unlawfully withheld after demand was made in Salt Lake County. It is true there is some evidence to the effect that the cattle were taken to the Union Stock Yards, some miles north of Salt Lake City, which are in Davis County, but whether the cattle were taken there before or after demand was made does not distinctly -appear. It does, however, clearly appear that they were in Salt Lake City and County before they reached Davis County, assuming as a fact, although not shown by the evidence, that the Union Stock Yards are in Davis County; and there is direct evidence that when the demand was made and the refusal given, the cattle were in Salt Lake City and County. The fact that some process was served in Davis County, as shown by the return of the officer, is immaterial, because, in such a case, the question is not where the property was when process was served, but where it was when demand for its possession was made. The cause of action arose when and where such demand was made and the refusal occurred. This court so held in Woodward v. Edmunds, 20 Utah, 118, 57 Pac. Rep., 848. .

We are of the opinion that the action was properly ' brought in Salt Labe County.

Nor does the fact that the complaint contains an allegation of ‘ ‘ wrongful taking, ’ ’ furnish a sufficient reason for setting aside a verdict for unlawful detention, when such detention was not only the main is- - sue, but was the gravamen of the action, and when the case was tried mainly on that theory, and no objection to the complaint, based on such allegation, was raised by special plea, and the verdict is supported by the evidence. If the complaint was not as definite and certain as it should have been, the remedy was by special plea. It sufficiently states a cause of action in replevin in the detinet, to withstand the objections here made to the verdict and judgment, although it contains an allegation which would be proper and material in replevin in the eejpit. Where, as in this case, the judgment comes within the issue, and the facts show a right of recovery in the plaintiff, the mere fact that language is used in the complaint which technically applies to another form of action, will not, under the circumstances of this case, warrant a reversal of the judgment.

In Kuhn v. McAllister, 1 Utah, 273, where objection was made to the form of the action, it was said: “ Some of the language used may be that used in trover, but some certainly is not, and it matters little under the Practice Act, whether the language used be that belonging to the form of one action or another, or to no form of action. The material question is, Do the facts stated show the plaintiff entitled to any remedy, legal or equitable. If so, then the court could not say that the complaint did not state facts sufficient to constitute a cause of action.” Black on Judgments, Sec. 141; Pomeroy’s Code Berne dies, Sec. 453; Stevens v. Mayor, etc., of city of New York, 84 N. Y., 298; Conaughty v. Nichols, 42 N. Y., 83; Hale v. Omaha Nat. Bank, 49 N. Y., 626; McAllister v. Kuhn, 96 U. S., 87; Johnson v. Meaghr, 14 Utah, 426.

It is also contended that the verdict against defendants Harvey and Stewart is not supported by tbe evidence. This contention appears to be based on the ground that the cattle were delivered to Huffman and Anderson before suit was commenced. In answer thereto it may be said that there was no exception taken or error assigned, respecting insufficiency of evidence to sustain the verdict and judgment as to any particular defendant. The cause was tried upon the theory that all or none were liable, and the evidence tends to show that all manifested an interest in the property and were either directly or indirectly in possession thereof. Under the circumstances disclosed by the record, this point can not avail the appellants.

It is further contended, on behalf of the appellants, that the court erred in admitting oral evidence respecting the contract entered into by Nebeker and B. F. Stewart in June, 1897, after, on objection of the defendants, having refused to admit the contract itself in evidence. The trouble here is that the court committed error, harmless as to the appellants, in excluding this contract, for it seems impossible to perceive any sound reason upon which this action of the court was based. The contract referred to a sale of a number of cattle which included those in question herein. The evidence tended to show that the cattle were delivered in pursuance of its terms, and that the parties, on both sides of this controversy, had acted under it. There was a balance due the plaintiffs for the cattle delivered in accordance with its terms, for the payment of which appellant, Stewart, gave an order, and this was accepted by the other appellants, <l when advance money paid by Harvey settled.” This was the only condition as to the acceptance. It is true the appellants introduced evidence tending to show that the cattle were delivered under another contract, but this did not authorize the exclusion of the contract here under consideration. As the contract was clearly admissible in evidence, and had been improperly excluded, at the instance of the appellants, the court committed no error in afterward admitting evidence showing that such a contract was in fact executed, and tending to show that the property in dispute was delivered in pursuance of that contract, and that the title of that property was to remain in the plaintiffs, until payment in full had been made. Whether the cattle were delivered under the one or the other of the contracts was a question of fact for the jury to determine. The jury determined it adversely to the appellants, and there appears to be ample evidence in the record to sustain the verdict on this point.

The appellants also complain of the action of the court in modifying a certain request to charge, but upon careful examination of the modification of the request, which, as modified, appears in the charge of the court, as paragraph number 16, we perceive no error.

Numerous other errors, relating to the charge of the court, were assigned, but, in the absence of proper exceptions, we can not consider them. The exceptions are too general, simply referring to whole paragraphs of the charge. To be of avail in an appellate court, they must specify the particular objectionable matter, so as to give the trial judge an’ opportunity to make a correction, notwithstanding that it is provided in Section 3151, E. S., that “no reason need be given for such exceptions.” That section does not authorize the making of wholesale exceptions without reference to the specific matter which is claimed to be objectionable. The reason of the rule which requires the specific objectionable matter to be pointed out in the presence of the jury is obvious. If the objection to such matter be well taken, the court may then make the correction called for, and thus not only save the expense of another trial but also the time of the court. The rule has been firmly established in this State. Pool v. Southern Pac. Co., 20 Utah, 210; 58 Pac. Rep., 326, 333; Brigham City v. Crawford, 20 Utah, 130; 57 Pac. Pep., 842; Wilson v. Sioux Con. Min. Co., 16 Utah, 91, 99; People v. Hart, 10 Utah, 204; Lowe v. Salt Lake City, 13 Utah, 91, 99.

Wo do not deem it necessary or important to discuss any of the other questions presented. . There appears to be no reversible error in the record.

The judgment is affirmed, with costs.

Minee, J., concurs in the result. Baskin, J., concurs.