Gardner v. Brown

• Decision Date: 24 July 1894
• Docket Number: 1,404.
• Parties: GARDNER v. BROWN et al.
• Court: Nevada Supreme Court

37 P. 240

22 Nev. 156

GARDNER v. BROWN et al.

No. 1,404.

Supreme Court of Nevada

July 24, 1894

Appeal from district court, Ormsby county; Richard Rising, Judge.

Action by M. C. Gardner, Sr., against Louis Brown and others to recover possession of cattle. Judgment for plaintiff, and defendants appeal. Reversed.

Torreyson & Summerfield, for appellants.

Trenmor Coffin, for respondent.

BELKNAP J.

This is an appeal from an order overruling a motion for a new trial. The action was in the ordinary form of claim and delivery under the statute for the recovery of the possession of a certain number of cattle and horses alleged to be withheld and detained by the defendants. The answer justifies the taking by the defendants, one of whom is the sheriff of Lyon county, under an execution against J. H. Gardner, a son of the plaintiff, as his property, and a subsequent sale in the month of January, 1893, two months before this suit was commenced. The proofs showed without question that the cattle were sold as alleged in the answer. Upon these facts the question arises, has the plaintiff established a cause of action in claim and delivery against the defendants? In order to have established his case, he should have shown a possession of the demanded property in the defendants, as he had allege d in his complaint. The detention is the gist of the action, and recovery of the possession of the property its primary object. The statute has provided all the appliances to this end, and the allegations of the complaint are consistent with this view. The proofs show a fatal variance, and the requirement of the statute that the complaint shall contain a logical statement of the facts constituting the cause of action has been disregarded. In his recent work on Replevin, Mr. Cobbey states the law as follows: "To enable plaintiff to maintain an action for the recovery of specific personal property, the defendant must be in possession thereof at the commencement of the action. When the petitioner alleges that the defendant is in possession, and the proof shows the contrary, there is such a variance between the allegation and the proof as disables plaintiff from recovery." Section 61. The New York cases have adopted a different view (Nichols v. Michael, 23 N.Y. 264), but the great weight of authority is the other way (Coffin v. Gephart, 18 Iowa, 257; Riciotto v. Clement, 94 Cal. 105, 29 pac. 414; Haughton v Newberry, 69 N.C. 456; Hall v. White, 106 Mass 599; Aber v. Bratton, 60 Mich. 357, 27 N.W. 564; Griffin v. Lancaster, 59 Miss. 340; Moses v Morris, 20 Kan. 208; Davis v. Randolph, 3 Mo App. 454; Feder v. Abrahams, 28 Mo.App. 454; Willis v. De Witt (S. D.) 52 N.W. 1090. We should have hesitated before reversing this case upon this point if substantial justice had been done by the verdict. But the measure of damages established at the trial was wrong, and for this reason, if for no other, we are constrained to remand it. The value of cattle-the subject of the litigation-had fluctuated during the pendency of the suit and the jury were instructed that the plaintiff could recover the highest value between the taking...