117 P. 38 | Utah | 1911
Lead Opinion
This was an action in claim and delivery to recover possession of three white and one black sheep of which respondents claimed to be the owners and entitled to possession. Appellants in their answer also claimed to be the owners of and entitled to possession of said sheep. The only issue, therefore, was who owned the sheep. The jury found that respondents were the owners of the three white sheep and; that appellants owned the black one. Judgment was entered accordingly from which appellants' prosecute this appeal.
The evidence relative to the ownership of the sheep is very conflicting, and the only questions for review relate to the charge of the court as given to the jury. , As evidence of
At first blush we were impressed 'with the thought that in view that respondents’ marks and brand were duly recorded the charge embodied k correct principle of law, but after making a thorough investigation of the statutes of the different states upon the subject of marks and brands,
In a number of the states and territories it is expressly provided by statute what the probative force or effect of recorded marks or brands shall be. Such is the case in Arizona, Brill v. Christy, 7 Ariz. 217, 63 Pac. 759; in Cali
In Kansas and Oregon, where the statute is silent with regard to what effect recorded marks and brands shall have as evidence of ownership, it is held that such marks and brands, like other marks and brands, are some evidence of ownership which is to be considered in connection with all the other evidence. (State v. Folfley, 75 Kan. 406, 89 Pac. 1046, 93 Pac. 337, 12 Am. & Eng. Ann. Cas. 412; Stewart v. Hunter, 16 Ore. 66, 16 Pac. 876, 8 Am. St. Rep. 267.)
In the Kansas case, in the headnote written by the court, the law relative to recorded brands is stated thus: “The jury have the right to consider the fact that the cattle alleged to have been stolen bore the brand of the complaining witness' as some evidence that they were owned by him.”
The California Supreme Court, in People v. Bolanger, 71 Cal. 17, 11 Pac. 799, in speaking of the effect of an unrecorded mark, says: “An earmark used by the alleged owners of hogs was some evidence of ownership'.”
In the absence of statutes fixing the legal effect of recorded marks and brands, the foregoing courts give recorded and unrecorded marks and brands precisely the same effect, namely, that they may be considered by the jury the same as others marks of identification as some evidence tending to show or establish ownership, and the weight or effect that any particular mark or brand shall receive is a question to be determined by the jury, and not by the court.
The cases from Tennessee and Kentucky may be said to be to the same effect as those from Kansas and Oregon. See
After a thorough research we have been unable to find a single case whei’e, in the absence of a statute to that effect, the courts have held that the production of the record of marks or brands constitutes prima, fade evidence of ownership'. There is no statute in force in this state which provides what, if any, probative effect shall be given to recorded marks or brands, or which provides that such marks or brands shall receive any other or greater force as evidence of ownership than any other' mark or brand with which the owner may mark or brand his live stock for the purpose of identification. Counsel for respondent, however, insist that unless the record of the mark or brand be declared to cpnstitute prima facie evidence of ownership the recording of the mark or brand is but an idle ceremony. Such a result does not necessarily follow. The statute in effect provides that a person who records his mark or brand becomes the exclusive owner thereof, and every other person is prohibited from recording or using a like brand. This thus gives the owner of live stock the exclusive right to use a particular mark or brand for the purpose of identifying his stock, and', no doubt, when such a mark or brand is found on cattle or any other live stock it affords evidence more or less strong of the ownership of the stock marked or branded with the recorded mark or brand of the person having recorded the same as his own. If, however, we were inclined to do what, so far as we are aware, no- other court has done, namely, declare that the record of a mark or brand is prima fade proof of ownership, yet, in view of the history of the legislation in this territory and state upon the subject of marks and brands, we think this should not be done. The first enactment relating to marks and brands was passed by the territorial legislature of Utah in January, 1866. (Comp. Laws Utah 1876, p. 98.) That act, like the present statute, was silent with respect to what evidentiary effect should be given to recorded marks or brands. The next act, which was a very comprehensive law upon the subject, was
“In any trial under tlie provisions of this act, the proof of the brands and marks shall he deemed sufficient to identify all classes of live stock mentioned in this act, and shall Be prima facie evidence of ownership of such stock.” 1 Comp. Laws Utah 1888, .p. 782. (Italic ours.)
This act was slightly amended in 1897. (Laws Utah 1897, p. 47. The law npon the subject of marks and brands was considerably abridged when the Revised Statutes of Utah 1898, were adopted, as appears from chapter 2 of title 2 of that revision, which superseded and constituted all the law upon that subject from and after January 1, 1898. In the Revised Statutes of Utah 1898, the section with reference to what effect recorded marks or brands shall have was entirely omitted. The l'aw upon this subject as found in the Revised Statutes of Utah 1898, was subsequently carried into Comp. Laws Utah 1907, and constitutes sections 36 to 47 of that compilation. The law, therefore, as now in force in this state, and which was in force when the cause of action in question arose, not only does not provide what, if any, effect shall be given to recorded marks or brands, but the very provision which did provide that recorded marks and' brands should constitute prima facie evidence of ownership' has been entirely eliminated, and for more than twelve years has not been a part of the law of this state upon that subject. In view, therefore, that at one time there was a statute in force in this state which provided what evidentiary effect should be given to recorded marks and brands, which statute has been ■repealed, or, at least, eliminated from the law upon the subject, we think it should be assumed that the legislature had a purpose in view in bringing about such a change in the law respecting marks and brands. In other' words, we think no other inference is permissible than the one that the legislature of this state, by eliminating the section we have¡ quoted, intended to make the evidentiary éffect of recorded marks and brand's precisely the same as .that given tó any other mark or brand that an owner of live stock might apply to his stock as
While the legislative power may, within certain limits, declare what prima facie shall be deemed sufficient evidence for the purpose of establishing a given fact, yet
What has been said practically disposes of the objections urged against the other instructions.
The court, , in submitting a case to a jury in which the effect of recorded or unrecorded marks or brands is involved, should not single out any particular mark or brand and tell the jury what its effect as evidence is, but should submit to them all the marks and brands, whether recorded
Concurrence Opinion
(concurring.)
I concur in the result reversing the judgment. However, I am of the opinion tbat the appellants ought not to have costs. Under the statute (Comp. Laws 1907, section 3344) “costs on appeal are in the discretion of the court (1) when a new trial is ordered,” or (2) “when a judgment is'modified.” At the outset all tbat was involved in this case was the value and right of possession of four common sheep alleged in the complaint to be of the value of six dollars each, and in the answer $3.50 each. the jury, by their verdict, awarded three sheep to the plaintiffs and one to the defendants. the defendants, not to vindicate or have settled any legal principle involved in the case, but to defend a mere pecuniary interest alleged by them to be worth only $10.50, prosecuted this appeal on a transcript consisting of 325 pages, a printed abstract of sixty-four pages and a printed brief of sixteen pages, a cost, including fees, of something like $150. Though the defendants bad the right to prosecute the appeal without any reference to the amount claimed or involved, yet when the amount involved is so greatly disproportionate to the costs, and when compared with them is almost insignificant, it would seem tbat something else besides defending or protecting a mere monetary interest prompted the appeal. the awarding of costs being here discretionary, I think neither party should be given costs.