Everett v. Buchanan

• Decision Date: 01 January 1880
• Court: South Dakota Supreme Court
• Parties: EVERETT v. BUCHANAN.

6 N.W. 439

2 Dak. 249

EVERETT

v.BUCHANAN.

Supreme Court of the Territory of Dakota.

Filed ____ --, 1880.

Appeal from the district court of the county of Minnehaha.______, for appellant.

______, for appellee.

KIDDER, J.

Numerous assignments of error were made by the appellant, but, upon the argument, all were abandoned save these three: First, the court erred in overruling defendant's demand; second, the court erred in overruling defendant's motion for a continuance; third, the court erred in refusing to enter judgment in accordance with the special verdict.

We shall proceed to examine there alleged errors in the order in which they are assigned. The allegations of the complaint to which the demurrer was directed are as follows: “ First, that at the time hereinafter mentioned the plaintiff was lawfully possessed of * * * * these, and ever since his property; second, that the plaintiff's right to the possession and title in said ink roller * * * * is that he is the absolute owner of the same; that he he is entitled to the possession of said two printing presses * * * * by virtue of a lease from John McClellan to this plaintiff, a copy of which lease is hereto annexed, * * * is made a part of this complaint,” etc.

The complaint then alleges that on the sixteenth day of February, 1877, one Henry Callender wrongfully took said property from the possession of the plaintiff, and that thereafter the same came to the possession of the defendant, who unjustly detains the same; that on the seventh day of March, 1877, prior to the commencement of the action, plaintiff made a demand therefor; that defendant refused to deliver said property to the plaintiff, and still unjustly detains the same. The complaint also states that the lease therein mentioned was duly filed in the register of deed's office of the county in which the property was situated prior to said sixteenth day of February. The defendant's demurrer was overruled by the court. The defendant then filed his answer, and went to trial on the issues thus joined. The complaint states but a single cause of action, and the defendant, by answering, has waived his right to insist upon the alleged error in overruling the demurrer, except as to two grounds, viz.: First, an objection to the jurisdiction of the court; second, that the complaint does not state facts sufficient to constitute a cause of action. Code of Civil Procedure, § 117. The latter is relied upon by the appellant. The evidence is not before us. No objection appears to have been taken to the verdict of the jury, upon the ground of insufficiency of the evidence, and we are not to be understood as deciding, at this time, how far such error as is alleged here may have been cured by the verdict. In view of the conclusion we have arrived at upon the question of the sufficiency of the complaint, an examination of this question of practice would not change the result. The complaint alleges possession by the plaintiff, ownership as to part, and special property as to the rest of the property therein described; a wrongful seizure thereof by one Henry Callender on the sixteenth day of February, 1877; that thereafter the property came to the possession of the defendant, who, after demand by plaintiff, still unjustly detains the same from the plaintiff. The complaint clearly states facts sufficient to constitute a cause of action.

Lawful possession of property, and a tortious taking, or wrongful detention thereof after demand, are sufficient to maintain this action. Kuhland v. Sedgwick, 17 Cal. 123. In that case the complaint alleged that on a certain day “the plaintiff was the owner and in possession of certain personal property * * * of the value of $1,000, and that on the same day the defendant seized upon and converted the same to his own use.” The court held the complaint sufficient, and say: “There is not even the pretence of an issue on this allegation, (that of the plaintiff's possession,) except conjunctively with that of ownership. Each of these allegations is sufficient to sustain the complaint, and an issue presented by a conjunctive denial must be regarded as immaterial and irrelevant.” The demurrer admits the general and special property in the plaintiff, his possession, the demand for a return of the property, and its detention by the defendant. In an action of laim and delivery, under the Code, the complaint may be in the form of the old declaration in replevin in the detinet. It is not absolutely necessary to state in the complaint the particular facts which show that the detention is unlawful; they may be given in evidence on trial, although, under the Code, we should regard it as better pleading to state such facts. Bliss v. Cottle, 32 Barb. 322;Hunter v. Hudson River Iron Machine Co. 20 Barb. 493;McLaughlin v. Piatti, 27 Cal. 464.

The second error relied upon by the appellant is the refusal to grant a continuance. The affidavit for a continuance, upon which the application was made, has not been made in any proper manner a part of the record in this case. An affidavit used upon a motion in the court below can be reviewed here as to its sufficiency only when it has been made a part of the record in this court by being incorporated into, or made a part of, the bill of exception, duly settled, as provided by section 280 of the Code of Civil Procedure. We find in the transcript what purports to be an affidavit and motion for a continuance, but nothing appears anywhere in the record to show what disposition was made of such motion, except we find therein what is called “minutes of the court,” in which is the following statement: “May 30, 1877. Motion for postponement denied, and defendant excepts.” This is not a bill of exceptions; it lacks the settlement of the point, and the signature of the judge. It is in reality nothing more than a memorandum kept by the clerk, which is no fact of the record in a cause. Vide, generally, Gordon v. Clark, 22 Cal. 534;Stone v. Stone, 17 Cal. 513;People v. Houseshell, 10 Cal. 83;Gates v. Buckingham, 4 Cal. 268;Ritter v. Mason, 11 Cal. 214;Moore v. Temple, 11 Cal. 360.

We will now proceed to the consideration of the third assignment of error. Upon the trial the jury returned a general verdict for the plaintiff upon all the issues, the value of the property and damages for its detention, and a special verdict, as follows:

“1. That Henry Callender did, as the agent of J. W. Hay, and by virtue of the chattel mortgage, take possession of the property described in the complaint, on the sixteenth of February, 1877. 2. That the defendant did purchase, at private sale, from J. W. Hay, through Mr. Grigsby, his agent, the property described in the chattel mortgage, on the twenty-first day of February,1877. 3. That the property described in the complaint was not on the sixteenth of February, by Henry Callender, acting as an agent of J. W. Hay, placed under the charge of the defendant, but of John McClellan. Upon these facts the jury find as above.”

The evidence submitted to the jury is not before us. The answer sets up-- First, a general denial, except as thereinafter specially admitted; and, second, as further and separate defence, that on the twenty-sixth day of January, 1876, said McClellan was the owner of the property in dispute and in possession thereof, and on that day executed to J. D. Cameron & Co. a chattel mortgage thereon, which was duly filed in the register of deed's office on that day; that on the third day of July, 1876, said Cameron & Co. assigned said chattel mortgage to J. W. Hay; that on or about the nineteenth day of February, 1877, the said Hay took possession of the property by virtue of the mortgage, which contained a power of sale, for the purpose of foreclosing, and did foreclose the same by selling the property at private sale, to the defendant, on or about the twenty-first day of the same February; that the property was delivered to the defendant by reason of the said purchase, and that he became thereby, and ever since has been, the legal owner thereof. The counsel for the appellant insists that the general verdict, upon which judgment was entered for the plaintiff, is in direct conflict with the special findings of the jury, and that judgment should have been entered for the defendant upon the special verdict. This question is fairly before the court. The appeal is from the judgment, and upon such appeal the court will review any errors apparent upon the face of the judgment roll proper. Wetherbes v. Carroll, 33 Cal. 549;Am. Riv. Wat. & Min. Co. v. Bear Riv. Wat. & Min. Co. 11 Cal. 340;McGill v. Rainaldi, Id. 391; Newbury v. Hansen, 12 Cal. 280. The verdicts, both general and special, are a part of the judgment roll. Code of Civil Procedure, § 299.

When a special pleading of facts is inconsistent with the general verdict the former controls the latter, and the court must give judgment accordingly. Code of Civil Procedure, § 261. The question to be determined, then, is this: Are the special facts found by the jury, in their legal effect, as the record stands, inconsistent with the general verdict for the plaintiff upon all the issues? In other words, admitting the facts to be as found by the special verdict, and as disclosed by the record, is not the plaintiff entitled to a judgment for a return of the property? The conclusions of fact presented by the special verdict should be so full, clear, and explicit that nothing may remain to the court but to draw from these conclusions of law. Id. § 260. Without stopping to comment upon this provision of the Code, as to its bearing upon this case, and without laying down any rule of practice upon this point, we may here say that, for the present case and the purposes of the question we are considering, the general verdict settles all disputed facts not passed upon in the special findings. The general denial in the defendant's answer put in issue all the allegations of the complaint...