7 Kan. App. 24 | Kan. Ct. App. | 1898
Objection is made to the consideration of this case, because, it is said, it does not appear that a motion for a new trial was filed at the term at which the verdict was found and the judgment entered. In this counsel are mistaken. It does so appear from the record. The verdict was returned and filed on May 12, 1894. The motion for a new trial was filed on May 14. On June 16, 1894, the motion was denied. By section 17 of the act creating the court of common pleas of Wyandotte county (Laws 1891, ch. 92), the terms of court are required to begin on the first Mondays in February, May, September, and November. Hence, it could not have been otherwise than that the entire proceedings were had at the May term.
The validity of the judgment depends upon the solution of the question whether there is contained in the record any competent proof on behalf of the plaintiff showing that the plaintiff in error converted the property for which damages are sought. The petition does not allege a wrongful taking of the goods in the first instance. It alleges that "the defendants carried away and converted” them to their own use, by refusing to surrender them on demand. The fact that the taking in the first instance was not unlawful made it necessary to aver a demand and refusal, to constitute a conversion or an actual disposition of the goods. However, the plaintiff proved no demand, but sought to prove an unlawful taking. To do this, under the circumstances of the case as they appear to have been, it became necessary to show that some one, whose name is not disclosed by the record, was the agent of the plaintiff in error,
The court permitted the introduction of these declarations and acts upon the promise of counsel for plaintiff to subsequently establish the agency, in which there was a total failure. At the conclusion of plaintiff’s evidence the defendant requested the court to withdraw this evidence from the jury. This the court declined to do, and the plaintiff excepted. This was clearly error prejudicial to the rights of the plaintiff in error.
The fourth assignment is that the court erred in refusing to instruct the jury, in substance, to find for the defendant. Upon the state of the evidence, as-admitted by the court, the instruction was properly refused.
The fifth assignment of error is that the court, over the objection of the plaintiff in error, instructed the jury that, if they believed from the evidence that the defendant wrongfully took the goods from the plaintiff’s possession, no demand was necessary. Assuming that the evidence established the agency of this unknown person, the instruction was proper; eliminating such evidence, there was nothing upon which to base such instruction.
We do not deem it necessary to notice the other assignments of error. The questions are not liable to ax-ise agaixx upon another trial.
The judgment is reversed, with direction to award a new trial.