Norwegian Plow Co. v. Bellon

• Decision Date: 09 December 1893
• Parties: NORWEGIAN PLOW CO. v. BELLON et al.
• Court: South Dakota Supreme Court

4 S.D. 384

57 N.W. 17

NORWEGIAN PLOW CO.

v.BELLON et al.

Supreme Court of South Dakota.

Dec. 9, 1893.

Syllabus by the Court.

When an appeal is taken from the judgment, and the appellant has failed to make a motion for a new trial in the court below, the question of the sufficiency of the evidence to support the findings will not be examined upon appeal. The appellate court will only examine such matters relating to facts complained of in the court below as are brought to its attention by a motion for a new trial.

Appeal from circuit court, Hutchinson county; E. G. Smith, Judge.

Action in claim and delivery by the Norwegian Plow Company against David Bellon and F. M. Hennis. Defendants had judgment, and plaintiff appeals. Affirmed.Geo. P. Harben, for appellant. D. G. Maclay, for respondents.

BENNETT, P. J.

From the record we find that this is an action in claim and delivery, wherein the plaintiff alleges in its complaint that the defendants wrongfully took from its possession and detain from it certain personal property of which it claims to be the owner. The defendants, who were at the commencement of this action, and prior thereto, respectively the sheriff and deputy sheriff of Hutchinson county, justify the taking and holding of the property by virtue of three writs of attachment which were sued out in three several actions commenced by three parties against H. H. Miller & Son, and who claimed that at the time the attachments were levied said H. H. Miller & Son were the owners of the property attached, and not the plaintiff. Upon the issues thus raised a trial was had before the court without the intervention of a jury, and a judgment rendered in favor of the defendants, from which an appeal is taken.

The assignment of errors, which is the appellant's complaint on appeal, raises but one question for the determination of this court; that is, was the appellant the owner of, and entitled to the possession of, the property mentioned in the writ of replevin at the time the property was taken by virtue of said writ? To maintain an action in claim and delivery the plaintiff must show a present right to the specific property mentioned in the writ. It is well established that the action cannot be maintained unless the plaintiff have the actual or constructive possession of the goods, or a general or special property in them, with the right to immediate possession. He must have such a title in them as authorizes him to reduce the goods to his possession at the commencement of his suit. Cannon v. Kinney, 3 Scam. 9; Heath v. West, 8 Fost. (N. H.) 101; Hume v. Tufts, 6 Blackf. 136. When the question of title is put in issue, and the right of possession is to be determined by the question of title, the burden is on the plaintiff to show a superior title in himself. The question is, which has the better title? Hatch v. Fowler, 28 Mich. 206; Patterson v. Fowler, 22 Ark. 398; Hallett v. Fowler, 8 Allen, 93;Dows v. Green, 32 Barb. 490;Barnes v. Bartlett, 15 Pick. 75. The plaintiff must recover on the strength of his own title, and not upon the weakness of his adversary's. If he fail on the strength of his own title, the possession of the property should be retained by the defendant. Easter v. Fleming, 78 Ind. 116; Reinheimer v. Hemingway, 35 Pa. St. 432; Goodman v. Kennedy, 10 Neb. 270, 4 N. W. 987. The establishment of these propositions rests in a great measure upon evidence produced at the trial. In the case at bar the plaintiff claims the ownership of the property in controversy, and the...