Clark v. Sublette
| Decision Date | 02 April 1906 |
| Parties | ANNA M. CLARK, Respondent, v. DANIEL W. SUBLETTE, Appellant |
| Court | Kansas Court of Appeals |
Appealed from Adair Circuit Court.--Hon. Nat. M. Shelton Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
A. D Risdon, Reiger & Reiger and Campbell & Ellison for appellant.
(1) The defendant contends the instruction is erroneous, for the reason that there were two defenses interposed and proven on behalf of the defendant. But we contend earnestly that such instruction eliminates the second defense, a defense perfect and complete in itself. (2) It is elementary that an action in replevin, cannot be maintained against a person who has neither the possession nor control of property. Land Co v. Company, 87 Mo.App. 167; Bank v. Metcalf, 29 Mo.App. 395; Fisk v. Phelps, 30 Mo.App. 431; State v. Herrell, 97 Mo. 105. (3) Instructions which are repugnant or ignore the theory of one of the parties, is error. Evers v. Shumaker, 57 Mo.App. 454; Davis v. Randolph, 3 Mo.App. 454; Rogers v. Davis, 21 Mo.App. 150.
Millan & Greenwood for respondent.
(1) The officer's return shows that the property was taken by him from defendant's possession. That he was in possession, is therefore not a disputable fact in this case. Sams v. Armstrong, 8 Mo.App. 573; Decker v. Armstrong, 87 Mo. 416; State ex rel. v. Finn, 100 Mo. 429. (2) If defendant cannot dispute the return of the constable, then he was in possession of cow, which is the only fact he disputes, so far as this appeal is concerned. (3) As defendant was in the actual physical possession the suit could only be brought against him. The case of Talbot v. Magee, 59 Mo.App. 347, is not in point.
This is a suit begun in a justice's court where it was tried and appealed to the circuit court, where it was again tried and judgment rendered against appellant, who appealed to this court.
The property in controversy is a cow of the value of $ 40. On the trial, plaintiff introduced evidence tending to show she was the owner of the cow; that the same was wrongfully detained by defendant at the time of the institution of the suit; and that defendant claimed to have possession of the property at that time, and that he resisted the officers charged with the execution of the writ. Defendant's evidence tended to show that plaintiff did not own said cow; that at the date of the commencement of the suit it was owned by his mother, Sarah Sublette; that he never claimed to be the owner; that he never had the cow in his possession, or under his control; that Sarah Sublette owned and had at all times possession and control of it; that he, with a brother and sister, resided on a farm owned and controlled by his mother, the said Sarah; and that he did not resist the officer in serving the writ.
The defendant contends that the court erred in giving and refusing instructions. In his motion for new trial he complains of the giving of instructions numbered three and five. Upon examination, we find there were no instructions thus numbered. But appellant says that he was mistaken in the numbers, that he had reference to those numbered one and two, and that plaintiff so understood the matter. It was an evident mistake, as only instructions one and two were given for plaintiff, and the other side could not have been misled by the false numbering.
Instruction numbered one is as follows: "If the jury believe from the evidence, that at the time of the institution of this suit, the plaintiff was the owner of the cow described in the statement, then your verdict must be in favor of the plaintiff." The instruction leaves out the question of whether the cow was in the possession of and detained by the defendant. As there was evidence tending to show that defendant was not in the possession of the cow at the time of the service of the writ, the instruction was defective--unless he was concluded by the return of the constable, who stated in his said return that he took the cow from the possession of defendant.
But defendant insists that the statement of the officer's return did not bind him, as the officer's statement was one which he was not required to make. Section 3905, Revised Statutes 1899, provides for a combined order of delivery and summons in cases of replevin, wherein the officer is required to take the property described from the possession of the defendant and deliver it to plaintiff, to serve the summons and "make due return thereof." It seems that it was clearly the duty of the officer in his return to state the facts. He could...
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