Cady v. Keller

• Decision Date: 14 January 1916
• Citation: 28 Idaho 368,154 P. 629
• Parties: SIDNEY CADY and NELLIE E. CADY, His Wife. Respondents, v. ERNEST B. KELLER, Appellant
• Court: Idaho Supreme Court

154 P. 629

28 Idaho 368

SIDNEY CADY and NELLIE E. CADY, His Wife. Respondents, v. ERNEST B. KELLER, Appellant

Supreme Court of Idaho

January 14, 1916

APPEAL AND ERROR - INSTRUCTIONS - AMENDMENTS TO PLEADINGS - REPLEVIN-JUDGMENT.

1. In the Idaho practice no provision is made for an appeal from an order denying a motion for judgment notwithstanding the verdict, and it is not, therefore, an appealable order.

2. The instructions given to the jury in a case must be read and considered together, and if they are not in conflict with each other and, taken as a whole, correctly state the law applicable to the facts of the case, the circumstance that an isolated paragraph is obscure, incomplete or indefinite will not, of itself, constitute ground for reversal.

3. Granting or refusing to grant permission to amend a pleading is largely a matter of discretion of the trial court, and unless the exercise of such discretion deprives a party to the action of some substantial right, it is not error.

[As to pleading, proof and practice in replevin, see note in 80 Am.St. 741.]

4. Although, as a general rule, the judgment in an action of replevin, if for the plaintiff and the property has not been delivered to him, should be in the alternative, for the return of the property or its value in case return cannot be had, and although the verdict is in the alternative and the judgment makes no provision for the return of the property, if it clearly appears from the record that return cannot be had, the case will not be remanded to the trial court with instruction to enter judgment in the alternative, since no useful result would follow such action and since no substantial right of either of the parties has been invaded by the form of the judgment entered by the trial court.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action of replevin. Judgment for plaintiffs. Affirmed.

Judgment of the trial court affirmed. Costs awarded to respondents.

Lynn W Culp, for Appellant.

The judgment is contrary to the verdict, the verdict being in the alternative, while the judgment is absolute, for the value of the property; and it is believed to be void for that reason alone. (Fitzhugh v. Wiman, 9 N.Y. 559; Cooke v Aguirre, 86 Cal. 479, 25 P. 5; Phipps v. Taylor, 15 Ore. 484, 16 P. 171.)

Roger C. Wearne, for Respondents.

The plaintiff in this action was entitled to judgment in the alternative for the return of the property or its value as found by the jury, but where the facts are such that a return of the property to him could not be had, he was entitled to take his judgment for the value of the property, as was done in this case; but even had it been possible to return the property, plaintiff would not have been compelled to accept the same instead of settlement for its value, unless he choose to do so, as the right of election is in him. (34 Cyc. 1544, 1545.)

MORGAN, J. Sullivan, C. J., and Budge, J., concur.

OPINION

MORGAN, J.

This action was commenced by respondents against appellant to recover possession of a team, harness and farm wagon, or the value thereof in case delivery could not be had, together with damages for the taking and detention of the property.

It appears that appellant came into possession of the property, which respondents claim was exempt from execution under the provisions of sec. 4480, Rev. Codes, in his official capacity as constable, first, under and by virtue of a writ of attachment and, thereafter, under and by virtue of a writ of execution issued out of the justice's court in a case wherein Branson-Max Hardware Company, Limited, a corporation, was plaintiff, and respondent, Sidney Cady, was defendant. It further appears that thereafter appellant sold the property pursuant to the execution.

The trial resulted in the following verdict by the jury:

"We, the jury in the above-entitled action hereby render our verdict in favor of plaintiffs and against defendant as follows:

"For the immediate return of the two mares, harness and wagon described in plaintiffs' complaint to plaintiffs, or in lieu thereof the payment to plaintiffs by defendant of the sum of $ 350 the value of the property at the time it was taken from plaintiffs and

"For the further sum of $ 200 damages for the taking and detention of said property."

Appellant moved for judgment in his favor notwithstanding the verdict, which motion was by the court denied and judgment was entered in favor of respondent and against appellant wherein it was, among other things, recited:

"It appearing from facts developed during the hearing that said property cannot now be returned to plaintiffs, therefore, it is

"Ordered, adjudged and decreed, and this does order, adjudge and decree, that plaintiffs do have and recover judgment against defendant, Ernest B. Keller, in the full sum of $ 350 together with the further sum of $ 200 being the total sum of $ 550 together with the costs and disbursements of this action as taxed in the sum of $ 42.50 and allowed herein."

From the order denying appellant's motion for judgment notwithstanding the verdict of the jury and from the judgment made and entered in this case, this appeal is prosecuted.

Sec. 4800, Rev. Codes, provides: "A judgment or order, in a civil action, except when expressly made final, may be reviewed as prescribed in this Code, and not otherwise."

Sec. 4807, Rev. Codes, fixes the time within which appeals may be taken from judgments and certain orders made and entered in district courts to this court, but no provision is made for an appeal from an order denying a motion for judgment notwithstanding the verdict, and, in the absence of such a provision, it is not an appealable order. This will, therefore, be treated as an appeal from the judgment alone.

Appellant assigns as error the action of the court in admitting in evidence respondent's exhibits marked for identification, "E," "F," "G," "H," "I" and "J," and contends that they were not properly identified and were incompetent, irrelevant and immaterial. These exhibits are a part of the files of the justice's court in the case above mentioned; exhibit "E" being a motion supported by the affidavit of respondent, Sidney Cady, for the release from attachment of the property in question as being exempt from execution; exhibit "F" is a supplemental motion demanding the release of the property upon the ground that the affidavit of attachment was false; exhibit "G" is the answer of plaintiff in said suit to the motion above mentioned; exhibit "H" is the affidavit for attachment; exhibit "I" is the undertaking on attachment, and exhibit "J" is the affidavit of Cady claiming the property in question as exempt from execution and alleging the facts upon which that claim was based.

During the trial of this case in the district court, while the justice of the peace was upon the witness-stand, counsel for respondents was attempting to prove, by the witness, the contents of certain documents, which were files in the justice's court, whereupon a controversy arose between counsel for the respective parties as to the proper method of making this proof, and resulted in an agreement being reached that all records and files in the justice's court pertinent to the issue in the verdict court might be accepted in evidence.

At the close of taking testimony counsel for respondents attempted to read the supplemental motion marked "F," above mentioned, to which objection was made by counsel for appellant upon the ground that it was not offered or introduced in evidence and was no part of the record, upon which objection the court made the following ruling:

"Overrule the objection on the ground that it is one of the papers that the court understood was offered in evidence. Counsel claims it was offered. I will say that at the time this justice's docket and other papers were offered in evidence the court...