Campbell v. First Nat. Bank

• Decision Date: 17 January 1907
• Parties: JONATHAN CAMPBELL, Appellant, v. FIRST NATIONAL BANK OF REXBURG et al., Respondents
• Court: Idaho Supreme Court

88 P. 639

13 Idaho 95

JONATHAN CAMPBELL, Appellant, v. FIRST NATIONAL BANK OF REXBURG et al., Respondents

Supreme Court of Idaho

January 17, 1907

REPLEVIN-OWNERSHIP AND RIGHT OF POSSESSION-MOTION TO DISMISS-APPEAL FROM ORDER TAXING COSTS-BILL OF EXCEPTIONS-VERDICT OF JURY-JUDGMENT ON-COSTS.

1. Under the provisions of subdivision 3 of section 4807 Revised Statutes, an appeal from a special order made after final judgment must be taken within sixty days after the entry of the judgment.

2. Where an appeal from an order taxing costs was not taken within sixty days after the entry of the order, such appeal will be dismissed on motion.

3. Where a transcript contains a bill of exceptions which brings up the action of the court in taxing costs, and an appeal from an order taxing costs is dismissed, the bill of exceptions will be stricken from the transcript on motion.

4. In an action in replevin for a band of sheep, where the sheep are taken from the defendants and placed in the possession of the plaintiff, and he retains possession thereof, and the action is tried upon the question as to how many of such sheep the defendants were entitled to the possession of, or, in case a recovery cannot be had, the value of said sheep, and the damages sustained by the defendants by reason of the plaintiff having taken possession of them, and the jury found that the defendants were entitled to one hundred and eighty-three head of said sheep, and that the value thereof was $551, and that the defendants had sustained damages in the sum of $62.01 by reason of the plaintiff so taking them, a judgment being entered on such verdict to the effect that the defendants have and recover from the plaintiff one hundred and eighty-three head of sheep, or, in case recovery cannot be had, $551, the value of said sheep, and for the further sum of $62.01 as damages, the verdict is sufficient to sustain the judgment.

5. Under the provisions of section 4453, Revised Statutes, in an action in claim and delivery, where the property has been delivered to the plaintiff and the defendants claim a return thereof, judgment for the defendant may be for the return of the property, or the value thereof in case a return cannot be had, and for damages for taking and withholding the same.

6. Under the facts of this case it would have been proper to have determined the number of sheep which the plaintiff was entitled to the possession of, but as the sheep were already in the possession of the plaintiff, and by cross-complaint of the defendants they had alleged that they were entitled to the possession of said sheep, and the case is tried upon the question as to how many of such sheep the defendants were entitled to have returned to them, a judgment having been rendered accordingly without seasonable objection on the part of the plaintiff as to the form of the verdict and the judgment, they will be sustained.

7. Under all the facts of this case the defendants are entitled to recover their costs.

(Syllabus by the court.)

APPEAL from the District Court of Sixth Judicial District for Fremont County. Hon. J. M. Stevens, Judge.

Action in claim and delivery; cross-complaint by defendants. Judgment for defendants. Affirmed.

Affirmed.

J. D Millsaps, for Appellant.

The true test in determining whether or not the respondents "obtained a more favorable judgment" than was offered in the compromise is made by comparing the offer with the judgment, and if the "specific property" offered to be returned and the "specific property" ordered by the judgment returned is the same in specie and in number, then the offer was complete in law; for the return of the property is the paramount issue of the action; the alternate judgment, for the value and damages, being only incidental.

The judgment rendered by the lower court in this case says nothing about the "value of said property" being in any sum, but simply reads that the defendants have judgment for the return of said one hundred and eighty-three head of sheep, "or in lieu thereof for the sum of $ 551, and damages for withholding the same in the sum of $ 62.01." The money part of said judgment cannot be sustained upon any principle of law known to legal jurisprudence.

The plaintiff would, as a matter of law, be the prevailing party to the extent of having recovered the ownership and right of possession of the fifteen hundred and twenty-five head of sheep in dispute, not found for the defendants, and being the "prevailing party," would be entitled to recover his costs, though he did not recover all the property sued for. (Idaho Rev. Stats., sec. 4901; Saunders v. Frost, 5 Pick. 259, 16 Am. Dec. 402, 405, note; Havens v. Dale, 30 Cal. 547; Lawton v. Gordon, 37 Cal. 207; Williams v. Morrison, 32 F. 682-684.)

The property having been delivered to the plaintiff at the commencement of the action, he was entitled to the judgment as "moved for" in his motion for judgment, confirming his right of possession--that is, that he recover of the defendants the possession thereof and damages, together with his costs. (Idaho Rev. Stats. 1887, sec. 4453; Claudius v. Aguirre, 89 Cal. 501, 26 P. 1077; Caruthers v. Hensley, 90 Cal. 559, 27 P. 411.)

F. S. Dietrich, O. P. Soule and Caleb Jones, for Respondents.

There was no need of a verdict or a judgment requiring the return of any of the sheep to the plaintiff. Such a verdict or judgment would be idle and useless. The plaintiff already had possession of all of the sheep. If the defendants were to secure any relief, it must be affirmative relief. The jury, therefore, awarded a return to the defendants of the sheep which they were entitled to, and which were in the possession of the plaintiff. These were properly described and the number given. The jury say: "Or in lieu thereof $ 551." It is very clear that while they did not use the word 'value," the $ 551 was intended by them as the value of the sheep. In addition to that they award damages for wrongful detention.

It is a general rule that a verdict will be sustained, even though it is not perfect, if the intention of the jury is clear, and certainly there can be no doubt as to what the jury intended in this case. (Cobbey on Replevin, sec. 1052 et seq.; Blackfoot Stock Co. v. Delamue, 3 Idaho 291, 29 P. 97; Johnson v. Fraser, 2 Idaho 408, 409, 18 P. 48.) But not only is the verdict sufficient, but appellant did not make any appropriate objection thereto at the proper time. For the reason that exception was not taken at the time the verdict was rendered and was not of a sufficiently definite character, appellant should not now be heard to criticise the verdict.

If we construe the offer as describing the identical sheep described in the verdict, still the verdict awards us a value of $ 551 as against an offer of $ 460--a difference of $ 91.00 in our favor. Besides this, we recovered $ 62.01 as damages, making a total of $ 153.01.

The amount recovered was materially in excess of the offer. The slightest excess, however, would be sufficiently to carry costs. (Swails v. Cissna, 61 Iowa 693, 17 N.W. 39.)

SULLIVAN, J. Stewart, J., sat at the hearing but took no part in the decision. AILSHIE, C. J., Concurring.

OPINION

SULLIVAN, J.

This is an action in replevin. The plaintiff claims ownership and right of possession to seventeen hundred and eight head of stock sheep, and presented his affidavit and undertaking in said matter, and the sheriff seized the sheep and delivered them to him, and he has ever since kept possession thereof. The defendants denied plaintiff's ownership and right of possession, and set up title to said sheep in one M. M Barber, from whom they claim to have taken certain mortgages on the same, and possession was delivered to defendants by said Barber, the facts in regard to which are fully set forth in the amended answer and cross-complaint. The plaintiff answered this cross-complaint, denying the allegations therein, and averring that said Barber's possession was that of a bailee only to plaintiff. The action was commenced on February 16, 1905, and on November 20, 1905, and before the trial of the case, the plaintiff in writing offered to allow judgment to be taken against him for the return of one hundred and eighty-two lambs and one ram, being a part of the property in dispute, which lambs and ram were admitted by plaintiff to be the property of said Barber and included in the mortgages mentioned in defendants' cross- complaint, and in said offer it is stated that "in case a return of said property cannot be had, the said plaintiff hereby offers to allow judgment to be taken against him herein for the sum of $ 460, the value of said property, together with legal interest thereon from the seventeenth day of February, 1905, and defendants' costs expended herein to date." The cause was tried by the court with a jury, and the following verdict was returned: "We, the jury, sworn to try the above-entitled cause, find as follows: We find that the defendants, above named, are entitled to a return to them of the possession of the following sheep described in the amended complaint, and of present ages and as follows: One hundred and eighty-two (182) one year old stock sheep and one ram, or in lieu thereof ($ 551) five hundred and fifty-one dollars. All of said sheep bearing wool brand, thus: , and being in the possession of the plaintiff. And we further find the value of each class of said sheep, per head, to be as follows: . . . . And we further find that by reason of the plaintiff's acts in taking the sheep from the possession of the defendants, in this action, and detaining said sheep, including the taking and appropriating to the plaintiff's own use, of M. M. Barber's interest in the lambs and wool thereof covered by the...