Town of Leroy v. McConnell, 8 Kan. 273

Town of Leroy v. McConnell

8 Kan. 273 | Kan. | 1871

The opinion of the court was delivered by

Kingman, C. J.:

This was an ordinary action of replevin. There was a verdict and judgment for the defendants. The plaintiffs bring the case to this court for review, alleging various errors.

l. Practice; giving exceptions. Error not prosumea. The record contains none of the evidence, nor does it pretend to show what the evidence tended to prove. We can only infer that there was evidence from the fact that issues of fact were made up. But this does not afford any decisive indication that there was any evidence; for the issues were d 7 suda that if there was no evidence the trial must, of necessity, have resulted in a verdict for the defendants. One of the errors complained of is the giving of certain instructions, and the refusal to give others. It would be labor wasted to examine the instructions given, for even it were certain that they were not correct as legal principles, there would be the uncertainty as to whether they applied to the evidence in the case; and if they did not, then though there may have been error, it is not shown to be prejudicial to the plaintiffs. The plaintiffs in error must show that such errors have been committed as have wrought prejudice to them, or may have done so, or there can be no reversal of the judgment. It is not necessary to bring up all the evidence in every case, but enough must be shown, either by the testimony or by statement in the kill of exceptions, for this court to see that the instructions are applicable to the evidence. The same remark applies to instructions refused. If they enunciate correct principles of law, and have no applicability to the case, then the court does right in refusing to give them; and in the absence of the evidence we are unable to say that such instructions ought to have been given. All presumptions are in favor of the rulings of the court below, and this presumption is not removed by any number of possibilities.

*276There was one instruction given that is possibly an exception to tbe general rule, as it is predicated upon one of tbe issues made by tbe pleadings. Tbe court instructed tbe jury that tbe plaintiffs must show that tbe Town of Leroy was incorporated. Tbe counsel for plaintiffs in error says that tbis fact was not in issue, as tbe part of tbe answer denying it was not sworn to. Code, § 108. But tbis is an error of tbe counsel. Tbe third, fourth, and fifth clauses in the answer are sworn to, and these are the clauses that put plaintiff’s incorporation in issue; therefore the direction in this point was correct.

The verdict is as follows: “We the jury find for the defendants, that at the time of the commencement of tbis suit they did not wrongfully detain the property in controversy.”

2. issue in repleyin; verdiet. There can be no question but that the above is a good verdict. The action of replevin, under the code, is for the wrongful detention. That is the main question in issue; and , x ' it relates to the time of the commencement of the action. There are many causes why a person who may not be the owner of the property still holds it, and yet not wrongfully. If not held wrongfully, the verdict for the defendant settles the action then pending, and it settles nothing more — neither the title, nor anything more than it purports to settle.

There being no error apparent in tbe record, the judgment is affirmed.

All the Justices concurring.