135 P. 1088 | Wyo. | 1913
This is an action brought by the plaintiff in error, Thomas, against the defendant in error, Mann, in the District Court of Sweetwater county, to recover the possession of certain sheep. There was a trial to the court resulting in a judgment in favor of the defendant and against the plaintiff and the sureties on the replevin bond for $800 and costs. Plaintiff brings error.
It is alleged, in substance, in the petition, that in the lifetime of one Evi Roman, he and plaintiff were co-partners in the ownership of said sheep. That Roman died in June, 1909. That at the time of his death he was in charge of the herding of said sheep. That since his death the defendant has had said sheep in his control. That on April 14, 1910, plaintiff demanded of defendant the possession of said sheep which was refused. This action was commenced April 16, 1910.
The first defense pleaded in the answer, in substance, admits the death of Roman, and that at that time he was in charge of the herding of said sheep; and alleges that after his death up to August 15, 1909, his widow, Emily Roman, was in control of said sheep, and from the later date to the taking of said sheep in replevin in this suit the defendant was in possession and control of said sheep, and denies the other allegations of the petition.
For a second defense it is alleged that on June 23, 1909, Emily Roman was appointed administratrix of the estate
For a third defense it is alleged, that on August 15, 1909, said sheep were intrusted to defendant by said Emily Roman for the purpose of herding and pasturing the same, and that he did so from August 15, 1909, until they were taken from him in this suit. That the reasonable charge for such herding and pasturing was $800, for which sum he claimed a lien on said sheep as agistor or herder.
The reply in effect denies the new matters pleaded in the answer.
The following appear to be the facts as shown by the evidence. That the sheep were the property of Thomas and Roman, co-partners. That Roman died in June, 1909, and at that time of his death he was in charge of the sheep. That Emily Roman was his widow. That she applied to the District Court of Sweetwater county for letters of administration on the estate of her deceased husband, and the court made an order appointing her such administratrix upon giving bond and qualifying as required by law. That she never qualified or gave any bond, but soon thereafter removed from the state. That the surviving partner, Thomas, did not give a bond as surviving partner until after the commencement of this action. That the defendant knew at the time he took possession of the sheep under an alleged contract of lease between himself and Emily Roman that the sheep belonged to Thomas and the estate of Evi Roman. That he took possession under such alleged contract about October, 1909'; but there is no competent evi
On that state of facts the court found that the defendant was entitled to the possession of said sheep at the time of the commencement of the'action, and the sheep having been delivered to plaintiff under the writ, rendered judgment for defendant and against plaintiff and the sureties on his bond for $800 damages, and costs.
The statute, section 5565, Comp. Stat.' 1910, provides that the surviving partner has the right to continue in possession of the partnership property and settle the business of the partnership, and to account to the executor or administrator of the deceased partner. That was his duty at common law. By section 5566, id. it is provided, “Every such surviving partner must, within fifteen days after the death of his co-partner, execute and file with the clerk of the District court, a bond to the State of Wyoming, with two or more sufficient sureties, ****** the penalty must not be less than twice the value of a partnership property,” etc. (Section 5567, id.). “In case of the neglect or refusal of any such surviving partner to execute and file a bond as provided in section 5566, then the District Court, or judge thereof, or commissioner or clerk, shall place the executor or administrator of the decedent in charge and custody of the partnership property, after the said executor or administrator shall have executed and filed a bond, as herein pro-: vided, for the execution and filing by the surviving partner, and such executor or administrator shall have the same authority and power to settle the affairs of the partnership as would the surviving partner had he executed and filed a bond as herein provided.” In this case the surviving part
The only other question in the case necessary to be decided is, whether the defendant had a lien upon the sheep by virtue of- section 3754, Comp. Stat. 1910, which reads as follows: “Any ranchman, farmer, agistor, or herder of cattle, tavern keeper, or livery stable keeper, to whom any horses, mules, asses, cattle or sheep, shall be entrusted, for the purpose of feeding, herding, pasturing, or ranching, shall have a lien upon said horses, mules, asses, cattle or sheep, for the amount that may be due, for such feeding, herding, pasturing or ranching, and shall be authorized to retain pos-
Reversed.