Bales v. Breedlove
| Decision Date | 15 January 1924 |
| Docket Number | Case Number: 12139 |
| Parties | BALES v. BREEDLOVE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Trial--Demurrer to Evidence--Sufficiency of Additional Evidence.
Where the district court overruled a demurrer to plaintiff's evidence, and thereafter both parties proceed with the trial and introduce further and additional evidence, and sufficient evidence is introduced to make a case for the plaintiff, a judgment rendered and entered in his favor on a verdict for plaintiff will not be disturbed.
2. Appeal and Error--Necessity for Exceptions--Instructions.
Error in giving instructions will not be considered on appeal unless exceptions are taken in the trial court.
3. Replevin--Party Defendant--One in Possession.
An action of replevin cannot be maintained against one who is not in the actual or constructive possession of the property at the commencement of the action.
Error from District Court, Coal County; J. H. Linebaugh, Judge.
Action by E. C. Breedlove and another against Emmet Bales. Judgment for plaintiffs, and defendant brings error. Reversed and remanded, with instructions.
C. M. Threadgill, for plaintiff in error.
G. T. Ralls and Trice & Davidson, for defendants in error.
¶1 This action was brought by the defendants in error against plaintiff in error for the recovery of 70 head of cattle and for damages in the sum of $ 500 for the unlawful detention of said property. Upon a trial of the case, a verdict was returned for the plaintiff for the possession of the cattle taken under the writ of replevin and for $ 1,578.38, being the value of the remainder of the 70 head of cattle which were not taken under the writ, but which had been previously sold. Judgment was rendered on this verdict and plaintiff in error has appealed. The parties will hereinafter be referred to as plaintiffs and defendant, as they appeared in the trial court.
¶2 The defendant first alleges that the court erred in overruling his demurrer to plaintiffs' evidence. It is unnecessary to consider this assignment, as testimony was offered by the defendant, and the verdict of the jury and the judgment rendered thereon were based upon the entire evidence, and, if there was sufficient evidence introduced to make out a case for the plaintiff, considering the entire evidence, the case will not be reversed because of error in overruling a demurrer to plaintiffs' evidence. Meyer v. White, 27 Okla. 400, 112 P. 1005.
¶3 The defendant next complains of the giving of instruction No. 2. No exceptions were taken to the giving of this instruction, and same will therefore not now be considered on appeal. It is next contended that the court erred in giving instruction No. 3 requested by the plaintiffs. This instruction advised the jury that if the jury should find in favor of the plaintiffs and against the defendant, the verdict should be for the possession of the property taken under the writ and for the value of the property not seized under the writ of replevin but covered by plaintiffs' mortgage....
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In re Nitey's Estate
...evidence: Meyer et al. v. White, 27 Okla. 400, 112 P. 1005; Oklahoma Hospital v. Brown, 87 Okla. 46, 208 P. 785; Bales v. Breedlove et al., 96 Okla. 280, 222 P. 542; Smith v. Cornwell & Chowning Lbr. Co., 101 Okla. 86, 223 P. 154; Stafford et al. v. Bond, 106 Okla. 173, 233 P. 185; Great Am......
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Stagner v. Files
...be reversed because of error in overruling a demurrer to plaintiff's evidence. Meyer v. White, 27 Okla. 400, 112 P. 1005; Bales v. Breedlove, 96 Okla. 280, 222 P. 542; Sinclair Oil & Gas Co. v. Allen, 143 Okla. 290, 288 P. 981. For this reason, only subdivision (a) of the defendant's first ......
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Great Am. Ins. Co. v. Harrington
...Okla. 105, 204 P. 265; Oklahoma Hospital v. Brown, 87 Okla. 46, 208 P. 785; Stafford v. Bond, 106 Okla. 173, 233 P. 185; Bales v. Breedlove, 96 Okla. 280, 222 P. 542; Smith v. Cornwell et al., 101 Okla. 86, 223 P. 154. ¶43 Perhaps, logically, the contention by the defendant that the court e......
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Cook v. First Nat. Bank of Duncan
...689; Everett v. Akins, 8 Okla. 184, 56 P. 1062, 56 P. 1062; Commercial Inv. Trust v. Ferguson, 96 Okla. 163, 220 P. 925; Bales v. Breedlove, 96 Okla. 280, 222 P. 542; Simpson v. Plummer, 96 Okla. 68, 220, P. 342. ¶18 It further appears from the record that the First National Bank and other ......