Huckell v. McCoy

• Decision Date: 10 December 1887
• Citation: 38 Kan. 53,15 P. 870
• Parties: WILLIAM HUCKELL v. J. C. MCCOY
• Court: Kansas Supreme Court

15 P. 870

38 Kan. 53

WILLIAM HUCKELL v. J. C. MCCOY

Supreme Court of Kansas

December 10, 1887

Error from Mitchell District Court.

ACTION by McCoy against Huckell, to recover three hogs. Judgment for the plaintiff was rendered in the district court on July 24 1885. The defendant brings the case here. The material facts are stated in the opinion.

Judgment reversed.

Ellis & Ellis, for plaintiff in error.

Kelley & Thorp, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of replevin, brought by J. C. McCoy against William Huckell, before a justice of the peace of Cawker township, Mitchell county, to recover three head of swine. The case was tried before the justice without a jury, and judgment was rendered in favor of the plaintiff, McCoy, for one of the hogs in controversy, and in favor of the defendant, Huckell, for the other two hogs. The defendant appealed to the district court, where the case was again tried before the court and a jury, and judgment was rendered in favor of the plaintiff, and against the defendant for $ 30 damages and the costs of suit. To reverse this judgment the defendant, as plaintiff in error, brings the case to this court.

Two principal grounds are urged for reversal: First, that the court below had no jurisdiction to hear and determine the case; second, misconduct on the part of the prevailing party. We shall consider these grounds for reversal in their order:

I. We think the court below had jurisdiction to hear and determine the case. The exact question, however, which the plaintiff in error, defendant below, desires to present to this court, can hardly be considered as in the case; for it was not raised at all in the justice's court, nor fairly raised in the district court, nor raised in the supreme court, until it was presented to the court by the brief of the plaintiff in error. That question is this: When an action of replevin is commenced before a justice of the peace by a resident of the county, against a non-resident, and the defendant is properly served with summons in the county where the action is commenced, but the property is not obtained, and the property has never been wrongfully detained in the county where the action is commenced, but has been and is wrongfully detained by the defendant in the county where the defendant resides, has the court jurisdiction to hear and determine the case as one for damages only? The facts upon which this question is desired to be raised are as follows: Huckell resides in Jewell county, and if he ever had any of McCoy's hogs in his possession, he had them in his possession only in Jewell county. McCoy resides in Mitchell county, and he commenced this action in that county. The summons was served upon Huckell in Mitchell county, but the officer never obtained possession of the hogs. The case was tried before the justice of the peace, and no question of jurisdiction was raised in that court. The case was appealed by the defendant to the district court, where it was tried as an action for damages only. It is not claimed that any question of jurisdiction was raised in the district court, until the defendant below filed his demurrer to the plaintiff's evidence, and it is now claimed that by such demurrer the question was raised. The demurrer, however, was in the following words: "And now comes the said defendant, William Huckell, and demurs to the evidence of the said plaintiff, for the reason that said evidence does not prove a cause of action." We do not think that this demurrer raises any question of jurisdiction. Neither does the exception taken to the ruling of the court upon this demurrer, nor the motion for a new trial, nor the exception to the ruling thereon, nor any exception, nor does the petition in error, present the question. Under such circumstances, we think the district court certainly did not err in entertaining jurisdiction of the case. But even if the defendant below had properly raised the question of jurisdiction in the justice's court, still we think it would have been unavailing; for we think the justice of the peace had ample jurisdiction to hear and determine the case as one for damages only, over any objection interposed by the defendant below. (Justices Code, § 67.)

II. The alleged misconduct of the prevailing party is the alleged misconduct of the counsel of the plaintiff below in making statements of alleged facts to the jury in his closing argument, which alleged facts had no connection with the case, were not supported by any evidence, and were highly prejudicial to the rights of the defendant. The statements were principally that the defendant had a very bad reputation, that he was continually in litigation, and that he was a liar and a thief. Among the statements are the following:

"I do not know what Mr. Ellis [the defendant's counsel] meant by his statement in regard to a 'good man,' unless the public clamor has been so loud about the bad reputation of his client that you have heard it."

"Afraid of a prosecution! from whom? A man who, when he knows more than anyone else -- who of all men knows. whether those hogs were stolen or not -- dares not become a witness. A thief seldom exposes his work to the noonday sun."

"If he [meaning the defendant] had come on the stand, we would have shown you that he [meaning the defendant] would swear to a lie -- that he is a liar as well as a thief."

"Mr. Ellis says that the boy has never been on the stand before. He probably don't know what everybody else knows, what all the neighbors know, that Huckell is all the time in court -- always having a lawsuit."

The defendant was not a witness in the case, and was not impeached. There was no evidence tending to show that he had a bad reputation; no evidence tending to show that he was "always" or had been at any time in litigation; no evidence tending to show that he was either a liar or a thief; no evidence that he stole the particular hogs in controversy, or that he had ever stolen anything; and no evidence indeed that the hogs in controversy were ever stolen by anybody, except evidence tending to show that they were at one time in an inclosure on the plaintiff's farm, and were afterward found in an inclosure on the defendant's farm. It appears. from the evidence that the plaintiff had about 127 hogs on his farm; that the defendant had about...