Hamilton v. Miller

• Decision Date: 06 June 1891
• Parties: HAMILTON et al. v. MILLER.
• Court: Kansas Supreme Court

26 P. 1030

46 Kan. 486

HAMILTON et al. v. MILLER.

Supreme Court of Kansas

June 6, 1891

Syllabus by the Court.

1. While a trial court should always be liberal in permitting a full and exhaustive cross-examination, yet it may nevertheless, in the exercise of a sound judicial discretion impose reasonable limits.

2. Where a matter of evidence is brought out for the first time on the cross-examination of a witness, the other party may re-examine upon the same matter.

3. Other matters considered.

4. Immaterial errors must be disregarded.

5. Where L., claiming to be the owner of certain cattle mortgages them to M., and afterwards, in an action in which M. is the plaintiff and L. and C. are defendants, C. claims to own the cattle, and to have owned them, as against L., at the time when they were mortgaged by L. to M., and L. admits the validity of the mortgage, it is immaterial as between M and C. whether the mortgage contained a perfect description of the cattle or not.

Error from district court, Sumner county; J. T. HERRICK, Judge.

McDonald & Parker, for plaintiffs in error.

George, King & Schwinn, for defendant in error.

OPINION

VALENTINE, J.

This was an action of replevin brought in the district court of Sumner county by George M. Miller, as cashier of the First National Bank of Wellington, against L. W. Hamilton, C. C. Hamilton, John H. Hamilton, and ___ Horsley, to recover certain neat cattle, of the alleged value, in the aggregate, of $9,450. The plaintiff claimed a special ownership therein, with the right to the immediate possession thereof, under a certain chattel mortgage executed by L. W. Hamilton, as the owner of the cattle, to Miller, as cashier, etc. The case was tried before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendants, and also found that the value of the property in controversy was $4,305, and that the amount of the mortgage debt was $6,223.56; and the court rendered judgment accordingly in favor of the plaintiff and against the defendants in the alternative for a return of the property or for the value thereof, to-wit, $4,305, together with interest and costs; and all the defendants except L. W. Hamilton bring the case to this court for review, making themselves the plaintiffs in error, and George M. Miller, cashier, the defendant in error. The only substantial question involved in this controversy is whether the aforesaid L. W. Hamilton was the owner of the cattle in controversy at the time of the execution of the aforesaid chattel mortgage, or whether the aforesaid C. C. Hamilton, his father, and John H. Hamilton, his brother, were at that time the owners thereof. Ample evidence was introduced on the trial to prove that L. W. Hamilton was the owner of the cattle, and that his father and brother were not the owners; and therefore that question must now be considered as at rest. But it is claimed by the plaintiffs in error that various errors occurred during the trial in the court below which will require a reversal of the judgment of that court. Whether this is correct or not we shall now proceed to consider.

The first and principal claim of error, as stated in the brief of counsel for the plaintiffs in error, is as follows: "The evidence showed that L. W. Hamilton did not claim any cattle except those he claimed to have bought from his father and their increase, and that there were about thirty or thirty-five head of cattle bought by John (J. H. Hamilton) in 1884 or 1885, and put in the herd. They were marked in the same way as the balance of the herd, and were never separated from it up to the time the suit was brought; yet when L. W Hamilton was put on to prove his title to the cattle included in the mortgage, and their identity with the cattle he had bought from his father, the court refused to permit the defendants to show upon the cross-examination of said witness as to how many of those cattle were separated from the cattle taken in replevin, although the witness assisted in making the separation." Counsel for the defendant in error, who was plaintiff below, answer this as follows: "The court did not refuse to permit the defendants to show upon cross-examination of L. W. Hamilton how many of the said thirty or thirty-five head...