Kaiger v. Brandenburg
| Decision Date | 28 April 1892 |
| Docket Number | 598 |
| Citation | 31 N.E. 211,4 Ind.App. 497 |
| Parties | KAIGER v. BRANDENBURG |
| Court | Indiana Appellate Court |
From the Hancock Circuit Court.
Judgment reversed, with costs.
S. E Urmston, A. M. New and H. Warrum, for appellant.
C. G Offutt, E. Marsh and W. W. Cook, for appellee.
This was an action by the appellant against the appellee, in the circuit court, to recover the possession of a stallion.
In the complaint it is alleged, among other things, that the appellant is the owner and entitled to the possession of the stallion; that the appellee has the possession thereof without right, and unlawfully detains the same.
There was an answer of general denial; trial by jury; verdict and judgment for the appellee.
A motion for a new trial was overruled, and this has been assigned as error by the appellant.
The reasons for a new trial, which are discussed by counsel relate to the introduction by the appellee of certain testimony and the giving of instructions by the court.
Upon the trial the appellant, to establish title and right of possession in himself, introduced in evidence a bill of sale of the horse, executed by the appellee to him on the 7th of May, 1890, and also an agreement in writing, entered into between the appellant and the appellee on the same day, by which it was stipulated that the appellee should keep, feed and care for the horse for the appellant for the period of thirty days for a compensation named in the agreement. The appellant also proved the value of the horse, and that after the expiration of the thirty days he demanded of the appellee the possession of the horse, which was refused. With this evidence the appellant rested.
One of the reasons assigned for a new trial is that the court erred in permitting the appellee to testify that at the time of the sale of the horse by the latter to the appellant, John F. Freeman and Andrew J. Smith owned interests in the horse, and that the appellee had no authority from Freeman and Smith to sell the horse.
After a careful examination of the record, we have been unable to find that any grounds of objection to this testimony were stated to the court below.
It has been settled by many decisions in this State that the record must set forth the objections to the testimony that were stated to the trial court, and that no objection in that respect can be urged upon appeal, except those stated to the court upon the trial. Rottenburg v. Nixon, 97 Ind. 106; Indiana, etc., R. W. Co. v. Cook, 102 Ind. 133, 26 N.E. 203; Shafer v. Ferguson, 103 Ind. 90, 2 N.E. 302.
Counsel for the appellant also complain that Freeman and Smith were permitted to testify for the appellee, that they each owned an interest in the horse at the time of said sale. We find that this testimony was given without objection.
Instruction numbered three, given by the court to the jury, was to the effect that if Freeman and Smith were interested in the horse as joint owners with the appellee at the time of the sale, the appellant could not recover.
The giving of this instruction was error.
The sale was made by the appellee when he was in the possession of the horse, and he is the sole defendant. In action for the recovery of personal property, the plaintiff must recover upon the strength of his own title. This doctrine is elementary. It is also well settled in this State that the general denial, when pleaded in answer to a complaint in replevin, not only requires the plaintiff to make out title in himself, but will admit evidence relative to the right of possession in the defendant, or even in a stranger. But while this has become...
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