Burns Bros, et at. v. Morrison.

• Decision Date: 09 April 1892
• Citation: 36 W.Va. 423
• Parties: Burns Bros, et at. v. Morrison.
• Court: West Virginia Supreme Court

36 W.Va. 423

Burns Bros, et at.

v.Morrison.

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1892.

Decided April 9, 1892.

1. Answer Burden of Proof Declar at eon Detinue Evidence Pleading Possession Practice.

In an action of detinue it is necssary for the plaintiff to aver and prove, that he has adequate title to the property with present right of possession in himself; and, secondly, actual possession thereof by the defendant anterior to the bringing of the suit. In his defence the defendant may prove a want of sufficient title to the property in the plaintiff, or he may prove a want of possession in himself. If the plaintiff have proved an anterior possession in the defendant, the burden is shifted, and it devolves upon the latter to prove that he has been legally dispossessed.

2. Detinue Evidence Possession.

Where the defendant, having introduced an agreement, from which it appeared that the owner of certain property in controversy had sold the same to him, it was entirely proper to permit him to testify by parol, and against the objection of the plaintiffs, that the said property had never come into his actual possession.

3. Detinue Evidence Practice.

After the taking of the testimony in the case, the defendant demurred to the evidence, and the plaintiffs joined therein, and immediately after such joinder the defendant asked leave to withdraw his said demurrer, to which the plaintiffs objected; but the Court overruled the objection, and allowed the demurrer to be withdrawn. Held, this Court allows to the courts belowa wide latitude of discretion in all such matters o? practice arising during the trial of the case below, and, in general, will not review such discretionary action, unless the same has been exercised in a manner plainly arbitrary, or otherwise obviously improper.

W. E. Haymond for plaintiffs in error.

Brown, Jackson § Knight for defendant in error cited 1 Wash. 308; 4 Min. Inst, p't 1, 485; 6 Leigh 42; 3 Rob. Prac. (2nd Ed.) 470; 2 Rand. 353; 23 Gratt. 619; 6 Munf. 320; 11 Leigh 233; 29 W. Va. 536; 28 VV. Va. 538; 10 W. Va. 115.

L;jcas, President:

T lis was an action of detinue brought by the plaintiffs below against the defendant for the purpose of recovering som 3 saw-logs, amounting in value, as declared upon, to the sum of nine hundred dollars in all. The case was submitted 1o a jury, who found for the defendant a verdict in the following words: "We, the jury, find that the defendant had no possession of the property mentioned in the declaration prior to the institution of this suit," Upon this verdict judgment was given for the defendant.

The plaintiffs moved the court to set aside the verdict, and grant them a new trial, assigning as grounds for that motion an error committed by the court in admitting certain evidence of the defendant; and, secondly, in allowing the defendant, after he had demurred to the plaintiffs evidence, to withdraw the demurrer.

The defendant, to sustain the issue on his part, gave in evidence an agreement in writing between one T. M. Belknap and L. M. Hall of the first part and himself of the second, conveying to him a number of logs in Webster county, supposed to be from eight hundred to one thousand in number. After the introduction of this paper the defendant, who was a witness in his own behalf, was asked by his counsel to state to the jury whether he bad had possseseion of the timber in the said writing mentioned, and defendant answered that he had not had possession of the said timber prior to the institution of this suit. To this question and answer the plaintiffs objected, but the court overruled the objection and permitted the same to go to thejury; and this action of the court is the subject of the first assignment of error by the plaintiffs below, who are prosecuting this appeal.

In an action of detinue there are several things which it is necessary for the plaintiff to aver and prove: First, he must prove property in himself; and, secondly, actual possession thereof by the defendant anterior to the bringing of the suit. Burnley v. Lambert, 1 Wash. (Va.) 308. In his defence the defendant may prove a want of title to the property in the plaintiff, or he may prove a want of possession in himself. If the plaintiff has proved an anterior possession in the defendant, the burden is shifted, and it devolves upon the defendant to prove that he has been legally dispossessed.

In this case it appears that the defendant introduced an article of agreement respecting certain logs sold to himself, and we may perhaps presume, as against him, that they were the logs in controversy, although there is nothing further in the record tending to establish this fact. The obvious purpose of this evidence was directed to the first branch of the plaintiffs' case, and it was intended to show that the plaintiffs had no title to the logs in controversy. The parol testimony of the defendant, that said logs had never come into his actual possession prior to the institution of this suit, was directed against the second position of the plaintiffs, viz., that the defendant had actual possession of the logs and wTas detaining them unlawfully and against the right of the plaintiffs. The parol evidence thus admitted was entirely proper, and there was no error in its admission.

The plaintiffs in error seem to have thought that it was only necessary to prove constructive possession on the part of the defendant, overlooking...