Jenkins v. Mitchell

• Decision Date: 15 May 1894
• Docket Number: 5332
• Parties: CHARLES T. JENKINS v. WILLIAM MITCHELL
• Court: Nebraska Supreme Court

59 N.W. 90

40 Neb. 664

CHARLES T. JENKINS v. WILLIAM MITCHELL

No. 5332

Supreme Court of Nebraska

May 15, 1894

ERROR from the district court of Box Butte county. Tried below before KINKAID, J.

AFFIRMED.

Thomas Darnall, Charles T. Jenkins, and M. B. Reese, for plaintiff in error.

R. C Noleman, contra.

OPINION

IRVINE, C.

This action was replevin by the plaintiff in error against the defendant in error for a number of law books and certain office furniture. The property was delivered to the plaintiff under the writ. The answer began with a general denial of all allegations not expressly admitted. It then alleged in extenso that the plaintiff and defendant were partners that the property replevied had been purchased for the partnership and was partnership property. The trial resulted in a verdict and judgment for the defendant, from which plaintiff prosecutes error.

The first eight assignments of error relate to the giving and refusal of instructions. In the motion for a new trial error is assigned upon this subject as follows: "The court erred in giving the instructions 1, 2, 3, 4, 5, and 6 on its own motion, and duly excepted to by the plaintiff. Second--The court erred in refusing instructions 1 and 2 asked by the plaintiff, to which the plaintiff then and there excepted." Under these assignments, therefore, if any one of the instructions in either group so assigned en masse was correct, the assignment must be overruled as to that group. (Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W. 700; McDonald v. Bowman, 40 Neb. 269, 58 N.W 704.)

Looking first at the instructions given by the court of its own motion the first is as follows: "The jury is instructed by the court that plaintiff, by his petition, claims to have been the owner and entitled to the immediate possession of the chattels in controversy at the commencement of this action. Defendant denies by his answer the claims of the plaintiff." This is one of the instructions particularly complained of, it being argued that it did not properly present the issues. We think that the instruction properly stated the issues. The plaintiff's right to recover depended upon his right of possession, and a denial by the defendant of plaintiff's allegations of ownership and right of possession was sufficient to admit any evidence going to defeat plaintiff's claim. (Aultman v. Stichler, 21 Neb. 72, 31 N.W. 241; Richardson v. Steele, 9 Neb. 483, 4 N.W. 83; Merrill v. Wedgwood, 25 Neb. 283, 41 N.W. 149; Cool v. Roche, 15 Neb. 24, 17 N.W. 119; Towne v. Sparks, 23 Neb. 142, 36 N.W. 375.) Indeed, the plea of property in defendant is mere matter of inducement to the traverse of plaintiff's claim of property and has been held not itself to be traversable. (Reynolds v. McCormick, 62 Ill. 412.) All the special matter pleaded might, therefore, have been stricken out and the general denial would have been sufficient to put in issue all the contested facts. It was not necessary for the trial court to state the immaterial portions of the pleadings, and the instruction quoted properly presented the issue.

Upon the assignment based upon the refusal of plaintiff's instructions it might be sufficient to say that the first instruction asked was a statement of the issues, and as we have held that the court correctly stated them, it was not error to refuse an instruction stating them in other language. By examining the second instruction, however, we are able to in effect consider several other arguments relating to the court's instructions which we are precluded from considering by themselves. By this instruction the court was asked to charge the jury that the burden of proof was upon the defendant to establish that the property replevied belonged to the partnership. This is not the law. The plaintiff undertook to replevy the property from the defendant. In order to prevail, it was incumbent upon him to show that he had at the commencement of the action the right to the immediate possession of the property as against the defendant. The defendant was not required, in order to defeat the action, to show that there was any interest in himself. It is clearly the law, and this was conceded, that one partner may not maintain replevin against another for partnership property. If, therefore, it appeared that this was partnership property, the plaintiff must fail, and it devolved upon the plaintiff by a preponderance of the evidence to establish his exclusive right. To have instructed the jury that the burden was upon the defendant by a preponderance of the evidence to show that the property belonged to the partnership would have been equivalent to saying that the presumption was in favor of the plaintiff's exclusive right and that he must recover unless the evidence preponderated against him.

One instruction given by the court related to the measure of defendant's recovery. While we cannot consider this assignment as such, the verdict conformed thereto, and the assignment that the verdict was contrary to law and the evidence may possibly be sufficient to cover the question raised. The jury found in accordance with this instruction that the value of the property was $ 310, and the value of defendant's interest one-half that sum. Judgment was rendered for $ 155, together with interest. It is clear that in an action of replevin there can be no settlement of partnership accounts (Chandler v. Lincoln, 52 Ill. 74), and the court, therefore, could not determine in this action the exact interest of the defendant. It is probable that where a partner, by a writ of replevin, seizes partnership property in possession of the other partner, the judgment in such an action should be such as to restore the parties to their position before the action began, which would require, unless the property was returned, a judgment against the plaintiff for its full value, leaving their ultimate rights to that fund, as well as to others, for determination in a proper proceeding. Certain it is that the plaintiff cannot be permitted in effect to succeed in replevin through the impracticability of maintaining a partnership accounting in such an action. If, then, the defendant is in such case entitled to any judgment and his precise interest cannot be determined, it would seem to follow that the judgment must be for the full value. The plaintiff was, therefore, not prejudiced by the court's directing the defendant's interest to be fixed at one-half that sum. The objection to this proceeding, which the plaintiff in error urges, is that such a judgment would constitute an adjudication as to this property which would be a bar to an inquiry in regard thereto in an accounting between the parties. If this result follows,...