First National Bank of Brunswick v. Wood

Decision Date09 July 1894
PartiesFirst National Bank of Brunswick et al., Appellants, v. Wood
CourtMissouri Supreme Court

Appeal from Linn Circuit Court. -- Hon. G. D. Burgess Judge.

Affirmed.

Charles Hammond and A. W. Mullins for appellants.

(1) The verdict is fully sustained by the evidence. (2) Plaintiff's instruction number 2 correctly stated the law. Jones on Chattel Mortgages, sec. 56; Stonebraker v Ford, 81 Mo. 532; Chandler v. West, 37 Mo.App 635. (3) Besides, defendant's second instruction presented the same theory of the case as did plaintiffs' second one and the defendant can not, now complain of error in plaintiffs' instructions. Holmes v Braidwood, 82 Mo. 610; Whetstone v. Shaw, 70 Mo. 575; Walker v. Owen, 79 Mo. 563. (4) Plaintiffs' instructions numbers 3 and 4 were properly given and the court erred in sustaining defendant's motion for a new trial, on the ground that they were erroneous. 20 Am. and Eng. Encyclopedia of Law, 1055; 2 Greenl. on Evidence, sec. 564; Wells on Replevin, sec. 21; Ingersoll v. Emerson, 1 Ind. 76; Rogers v. Arnold, 12 Wend. 30; Knox v. Hellums, 38 Ark. 413. (5) The court committed no error in refusing to give the defendant's sixth and seventh instructions.

O. F. Libby, C. C. Bigger and H. Lander for respondent.

(1) All presumptions are in favor of action of the trial court. (2) The appellate court will not interfere with the trial court's discretion in granting a new trial, unless it clearly appears that his discretion has been abused. Huckshold v. Railroad, 90 Mo. 548; Bank v. Armstrong, 92 Mo. 265; Cook v. Railroad, 56 Mo. 384; Stephens v. City, 83 Mo. 345. (3) The burden of proof was on the plaintiff to identify the property and could not be shifted so as to place it on the defendant in an action of this kind, and the trial court can not select any particular part of the evidence and tell the jury that this or that makes a prima facie case for either party, and thereby change the burden of proof from one side to the other. 2 Am. and Eng. Encyclopedia of Law p. 649, note 3; 2 Greenleaf on Evidence, sec. 563. (4) The burden of proving the identity of the property was on the plaintiff, consequently instructions numbers 2, 3 and 4 given on behalf of plaintiff were error and the court committed no error in granting respondent a new trial. Gray v. Parkes, 38 Mo. 160; Kaufman v. Shilling, 58 Mo. 218; Goff v. Belche, 62 Mo. 400. (5) In replevin plaintiff must recover upon his own right to immediate and exclusive possesion. Fleing v. Clark, 22 Mo.App. 218; Cross v. Hulet, 53 Mo. 397; Gantside v. Nixon, 43 Mo. 138.

Macfarlane J. Barclay, J., bases his concurrence on what is said in the first paragraph.

OPINION

Macfarlane, J.

This is an action under the statutes to recover possession of one hundred head of two year old steers branded with the letter "H" mostly on the right hip. Under a writ of delivery the cattle were taken from defendant, and delivered to plaintiffs, and the issue in the case is as to which of the parties is entitled to the possession. Each party claims under a chattel mortgage from J. W. Hogsett, the original owner.

Plaintiffs claim under a mortgage dated September 30, 1891, which describes the cattle as "three hundred head of two year old steers branded with the letter 'H' on the right hip, the said three hundred steers being all the two year old steers now owned by said Hogsett and now in his possession."

Defendant claims as purchaser under a mortgage of the said Hogsett to the Farmers' Bank of Laclede, dated the twenty-first day of March, 1891. This mortgage described the cattle as "one hundred head of two year old steers of various colors, branded with the letter 'H' on the right hip." Defendant also claimed title under an alleged compromise of the conflicting claim of the parties.

The evidence shows that during the year 1891 the said Hogsett, who was a large dealer in cattle, failed, owing the plaintiff bank about $ 14,500; the Farmers Bank of Laclede about $ 8,000; and two other banks smaller sums. He was at the same time the owner of six or seven hundred head of cattle, between two and three hundred of which were two years old and branded on the right hip with the letter "H." The remaining cattle were one and three years old. By agreement of the creditors, the cattle were placed in the hands of a committee composed of three men who were authorized to feed and care for them, and, when authorized by a majority of said four creditors, to sell them.

In the spring of 1892 some member of the committee turned over to the first mortgagee, the Farmers' Bank of Laclede, two hundred and fourteen head of the two year old cattle, and said bank claiming authority under its mortgage, and without consulting the other creditors, but with the consent of Hogsett, sold one hundred of them to defendant Wood. These are the cattle in dispute. Soon thereafter plaintiff bank demanded the other one hundred and fourteen head, and, upon paying the feed bill, they were turned over to it. Defendant claims that these one hundred and fourteen head were delivered to plaintiff bank under an agreement that no claim would be made by it for the hundred head sold to defendant. Plaintiff denied any such agreement.

On the trial plaintiff read its mortgage and proved without conflict that the cattle in dispute were a part of the cattle included in the mortgage.

Defendant read in evidence the mortgage to the Farmers' Bank of Laclede, proved his purchase from the mortgagee, the consent of Hogsett to the sale, and offered evidence tending to prove the identity of the cattle in question, with those described in the mortgage to the said Farmers' Bank; and evidence tending to prove the alleged compromise. Plaintiff offered evidence in rebuttal.

The issues were submitted to the jury on instructions and a verdict was returned for plaintiff. A motion for a new trial was filed by defendant, assigning a number of grounds therefor, the first of which was that the verdict was against the weight of the evidence, and second, that the verdict was against the law as declared by the court and the evidence in the case. The other grounds were for alleged errors in giving and refusing instructions and in admitting evidence. This motion was sustained by the court, no reasons being given therefor. From the order granting the new trial plaintiff appealed.

1. In Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440, it was held that "if the action of the court in granting the new trial can be sustained upon any ground set forth in the motion for that purpose, that it is our duty to do so." Circuit courts have large discretion in the matter of granting new trials, particularly upon the ground that the verdict is against the weight of evidence. This court has often ruled that, in law cases, where there is a conflict in the evidence, it would not review it and determine its weight, and it has as often...

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