46 Kan. 283 | Kan. | 1891
Opinion by
R. S. Parker commenced an action in replevin in the district court of Elk county against Richolson and H. and Winfield Baird, claiming that he had a special interest in and the right to the immediate possession of certain horses described in a chattel mortgage made by H. Baird to W. D. Parker on the 11th day of March, 1887, to secure a promissory note for $700 of that date, payable on or
Whatever may be the technical construction of the pleadings, the case was tried by both sides upon the theory that the main question was whether the note and chattel mortgage were the property of the father or the son, and upon this issue the plaintiff in error voluntarily assumed the affirmative. It is now too late to complain of the order of trial, the burden of proof, or the condition of the pleadings. The renewal affidavit made by W. D. Parker, the notice of sale, in which he described himself as mortgagee, his continued possession of the note and chattel mortgage, his apparent complete control and exclusive management of the entire business, are enough to enable us to say that there is some evidence to sustain the general finding of the trial court.
Complaint is made of the admission of the proceedings in aid of execution before the probate court, but it is a glittering generality, and does not specifically point out particular parts as erroneous. A part of these proceedings was an absolute
Again, the material and controlling,fact was as to the ownership of the note and chattel mortgage. All other facts were subordinate and perhaps immaterial, and hence we say that all parts of the transcript of the supplemental proceedings in aid of execution except such as showed the appointment of the receiver and his authority to take possession of the mortgaged property were, under the theory of the trial court, immaterial.
As we have said, there is evidence sufficient to sustain the general finding, and we can only recommend an affirmance of the judgment.
By the Court: It is so ordered.