Company v. Turner

• Decision Date: 09 May 1896
• Docket Number: 8255
• Parties: THE GEORGE R. BARSE LIVE-STOCK COMMISSION COMPANY et al. v. L. L. TURNER
• Court: Kansas Supreme Court

44 P. 987

56 Kan. 778

THE GEORGE R. BARSE LIVE-STOCK COMMISSION COMPANY et al. v. L. L. TURNER

No. 8255

Supreme Court of Kansas

May 9, 1896

Decided January, 1896.

Error from Morris District Court.

THIS action was instituted in the district court of Morris county by L. L. Turner, as plaintiff, against The George R. Barse Live-Stock Commission Company and The Missouri Pacific Railway Company to recover 140 head of four-year-old steers branded "C" on the right hip, of which the plaintiff claimed the right of possession under a chattel mortgage executed by W. H. Conklin on the first day of May 1889. A writ of replevin was issued at the commencement of the action, but the sheriff could not get possession of the property. The defendants severally made a special appearance and moved to dismiss the action, on the ground that the court had no jurisdiction over them, because both defendants were corporations, having neither a principal office nor officer in the county, and the cattle which the plaintiff sought to recover were not in the county at the time the suit was commenced. These motions were heard and overruled. The defendants answered, setting up the same matters as a plea to the jurisdiction of the court, and also denying generally the allegations of the petition. The railway company claimed no interest in the property, but was joined as a defendant on the ground that the cattle were in its possession for shipment by the commission company from Morris county to Kansas City. The commission company asserted a right to the possession of the cattle by virtue of a chattel mortgage executed to it on the 18th day of November, 1889, by W. H Conklin and others, on 350 head of two- and three-year-old steers, branded "C" on the right hip. The commission company had obtained possession of 212 head of cattle, which had been levied on by the sheriff of Osage county, under a writ of replevin, and shipped them to Kansas City. The plaintiff claimed that 140 of the cattle covered by his mortgage were included in the 212 head taken possession of by the commission company. It appears that L. W. Wilson went to Conklin's home place in Osage county, about five miles from Burlingame, prior to the execution of the plaintiff's mortgage, and looked at certain cattle on which Conklin proposed to give a mortgage to secure a loan of $ 6,000. Wilson made a memorandum of the number and description of the cattle he saw, and from that memorandum afterward drew the mortgage which covered all the cattle Wilson saw on Conklin's place, which were described in the mortgage as follows:

"Thirty-eight head of fat steers 4 years old; 22 head of steers, full-fed 3 years old, branded on right hip 'C'; 140 head of steers coming 3 years old this spring, branded on right hip 'C'; 10 steers 2 years old, branded on right hip 'C'; 210 head of cattle in all."

In the fall of 1889, J. H. Waite, the secretary of the commission company, made an arrangement with Conklin to loan him $ 10,000 for the purpose of buying cattle, on which Conklin was to give a chattel mortgage as security for the money. The cattle were to be gathered up and branded and the mortgage then given. The money was furnished, and Waite was notified by Conklin that the cattle were on hand. He then went down to Burlingame, where he met Conklin, and they together went to a pasture, east of Burlingame about two miles, where they found 257 head of steers freshly branded "C" on the right hip. They then drove to Conklin's home place, where Waite testifies he saw a bunch of large, fat cattle also branded "C" on the right hip, and eight small cattle in the same inclosure with them; that there were 63 full-fed steers and eight small ones in this inclosure, and that in another inclosure there was a somewhat larger bunch of cattle; that the next morning they went to another place, which Conklin designated as his breaking farm, two or three miles from his house, where they found 85 dehorned steers. They then went back to Conklin's house, where the chattel mortgage was drawn up under which the commission company claims the cattle in controversy. The description of the cattle in this mortgage is as follows:

"Two hundred and fifty-seven head of two- and three-year-old native steers, branded 'C' on right hip, said cattle being on what is known as the Cheese farm, near Osage City Kan.; 85 head of two- and three-year-old native dehorned steers, branded 'C' on right hip, now on my farm worked by Bratton, near Peterton, Osage county, Kansas; and eight two- and three-year-old native steers now in feed lot on my home farm near Peterton. The above being and including all the cattle of above description in our possession, being mostly three years old."

It appears that 100 head of steers were bought by Mr. June from Mr. Campbell, a stock-raiser in Barton county, in December, 1888, and were shipped by June to. Burlingame and there sold to Conklin. These steers were denominated then as yearlings past, and were large, being the pick from a herd of 270 or 280 head. Some of the cattle taken possession of by the commission company were identified by Campbell and June as a part of the cattle sold by Campbell to June, and by June to Conklin.

The jury trying the case rendered a verdict in favor of the plaintiff for 90 head of cattle, of the value of $ 2,700, and judgment was entered on this verdict.

The defendants bring the case to this court for review. The opinion was filed May 9,...