McHale v. Wellman

• Decision Date: 21 May 1898
• Citation: 46 S.W. 448,101 Tenn. 150
• Parties: McHALE v. WELLMAN et al.
• Court: Tennessee Supreme Court

46 S.W. 448

101 Tenn. 150

McHALE v. WELLMAN et al.

Supreme Court of Tennessee.

May 21, 1898

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action by Thomas J. McHale against W. Wellman and another. From a judgment for defendant Rosa Wellman, plaintiff appeals. Reversed.

G. P Smith, Geo. B. Peters, and J. H. Malone, for appellant.

Ralph Davis and H. F. Dix, for appellees.

WILKES J.

This is an action of replevin for the race horse Johnnie McHale. The case was tried before the judge without a jury, and there was a judgment for the defendant Rosa Wellman for the horse. The court fixed the value of the horse at $1,500, and on this sum computed interest--$115.75--from the date suit was brought to time of trial, and fixed the damages for detention at $100 making a total of $1,715.75, for which an alternative judgment was rendered if the horse was not returned. There was a demand properly made under the statute (Shannon's Code, § 4684) for a finding of facts and conclusions by the trial judge, to which he assented, and there was a written finding by him. So much of it as is material is as follows "The evidence in the case is exceedingly conflicting but the law imposes on plaintiff the burden of making out his case by a preponderance of evidence. This he has failed to do. The court finds that defendant Rosa Wellman is the owner of and entitled to the possession of the race horse Johnnie McHale, and at the time of bringing this suit he was worth $1,500; that Wellman, on December 27, 1894, made an agreement of partnership with plaintiff, McHale, to run Stonewall and Johnnie McHale, which was subject to be vacated at any time; the plaintiff McHale has failed to keep an itemized account, but has charged at the rate of $7.42 per day for the horse; that no actual damages have been proven except winnings, which the evidence indicates were $100, from the New Orleans races; that the court gives this $100 as damages, but allows nothing for damages since November 25, 1895, the date of suit, or from the fall races at St. Louis in 1895. L. H. Estes, Judge." Appellant, McHale, excepted to the finding, and moved for additional findings upon the ground that the memorandum filed by the trial judge does not comply with the statute; that no facts were stated bearing upon the question of the ownership of the horse, which was the vital point in the case; and that the judge merely stated his conclusions of fact and law that the evidence did not sustain the claim of McHale, and that the burden of proof was upon him; that in fact it...