Kemp v. Seeley

• Decision Date: 16 December 1879
• Citation: 3 N.W. 830,47 Wis. 687
• Parties: KEMP v. SEELY
• Court: Wisconsin Supreme Court

3 N.W. 830

47 Wis. 687

KEMP v. SEELY

Supreme Court of Wisconsin

December 16, 1879

APPEAL from the County Court of Dodge County.

Plaintiff appealed from a judgment in favor of the defendant. The case is sufficiently stated in the opinion.

Judgment reversed with costs and cause remanded for new trial.

The cause was submitted on the brief of F. Hamilton and E Elwell, for the appellant, and that of J. W. Seely, with J B. Hayes, of counsel, for the respondent.

OPINION

HARLOW S. ORTON, J.

This is an action de bonis asportatis, and the answer a general denial, which is tantamount to the general issue of not guilty. On such an issue, proof that the plaintiff was in possession of the property when taken was prima facie evidence of his title, and the further evidence given of his title was unnecessary; and the ruling of the county court admitting testimony, against the objection of the appellant, as to the bona fides of his purchase of the property from his vendor, Lemon, was clearly erroneous, because the respondent had not shown by his pleadings any right to question it. Hutchinson et al. v Lord, 1 Wis. 286; Rogan v. Perry, 6 Wis. 194; Stanton v. Kirsch, 6 Wis. 338.

The testimony given by the plaintiff and his witnesses was clear and positive that the respondent took the property from the possession of the appellant, and was corroborated substantially by the witnesses of the respondent; and the testimony of the respondent himself, consisting mainly of specific and technical denials, to say the least of it, was very evasive, if not contradictory. The findings of the court were:

"1. That the defendant did not take, carry away, nor convert, nor in any manner meddle or interfere with, the property of the plaintiff.

"2. That no trespass was committed by the defendant upon the property of the plaintiff, as alleged in the plaintiff's complaint."

This last pretended finding of fact is a mere conclusion of law, which leaves the first finding alone as authority for the judgment.

The taking and carrying away of the property is qualified and restricted in this finding by the words "the property of the plaintiff." What does this finding mean? Does it mean that the defendant did take the property from the plaintiff, but it was not his property, and belonged to some other person? This would seem to be the proper construction and logical inference; for it is a clear negative pregnant, in which the...