Kansteiner v. Clyne

• Court: Idaho Supreme Court
• Writing for the Court: SULLIVAN, J.
• Citation: Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019 (Idaho 1896)
• Decision Date: 03 December 1896
• Parties: KANSTEINER v. CLYNE

46 P. 1019

5 Idaho 59

KANSTEINER v. CLYNE

Supreme Court of Idaho

December 3, 1896

NONSUIT.-Held that the plaintiff established a prima facie case, and the court erred in granting nonsuit.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded for trial.

F. S Dietrich, for Appellant.

Even granting defendant's contention that the property in question was not exempt from execution against the plaintiff's husband, the ruling was still error. Under a claim of ownership the plaintiff had the actual possession of the property. As far as the proof goes, it tends to show that defendant was, and is, a naked trespasser who seized and detains the property without a shadow of justification. (Kane v. Desmond, 63 Cal. 464; Bickerstaff v. Doub 19 Cal. 107.)

Reeves & Terrell, for Respondent.

No authorities cited on the point decided.

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This is a suit in replevin, brought to recover the possession of sixteen head of livestock (cattle), or their value, alleged to be $ 275, in case a recovery of the possession cannot be had, together with damages. The defendant admits the taking and seeks to justify on the ground that he, as constable, took said stock under and by virtue of an execution against the property of plaintiff's husband. The judgment of the justice court was in favor of the defendant, and an appeal was taken to the district court. The cause was tried in that court to a jury, and, at the close of plaintiff's evidence, on motion of defendant, a nonsuit was granted, and judgment entered against plaintiff. This appeal is from the judgment. The appellant specifies as error the granting of the motion for nonsuit and the...