Sibeck v. McTiernan
Decision Date | 17 January 1910 |
Citation | 125 S.W. 136,94 Ark. 1 |
Parties | SIBECK v. MCTIERNAN |
Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Second Division; James H Stevenson, Judge; affirmed.
Judgment affirmed.
Carmichael Brooks & Powers, for appellant.
1. The court should have given a peremptory instruction for defendants. Articles of dress or personal adornment cannot be taken on a writ of replevin from the person of a defendant without his consent. 16 Gray 213, S. C. 77 Am. Dec. 409. And if plaintiff had no right to delivery of the property, there could be nothing to go to the jury. 37 Ark. 544; 43 Id. 535; 50 Id. 300; 54 Id. 121; 3 Hill 577.
2. The court should have instructed the jury that there could be no recovery unless demand had been made upon defendant, Mona Sibeck, prior to the institution of the suit. 16 Ark. 90.
3. Instruction number four, given at plaintiff's request, was erroneous in instructing the jury that "the defendants, or any of them," would be liable. Only the defendant having possession of the ring, at most, would be liable.
4. Under the statute of limitations, § 5064, subdiv. 3 and 6, Kirby's Dig., the plaintiff must allege, and the burden is upon him to prove, that the statute has not run. 27 Ark. 343. And in actions of replevin and detinue the period is three years. 22 Ark. 134; 22 Id. 226; 44 Id. 29. Defendants' requested instruction number 3 should therefore have been given. 50 Ark. 549.
5. A guardian ad litem should not have been appointed, as one was unnecessary.
6. The motion for judgment against the sureties on the replevin bond was not filed until more than thirty days after the trial, and this was too late under the statute. Kirby's Dig. § 6870. The surety was not afforded an opportunity to make defenses.
7. The verdict is not supported by the evidence.
Wiley & Clayton, for appellee.
1. Defendants' peremptory instruction was properly refused, because,
(a) It was abstract. 85 Ark. 390; 86 Ark. 91; 90 Id. 78; 90 Id. 287; 90 Id. 104; 87 Id. 471; 88 Id. 172; 88 Id. 454.
(b) It was not a correct statement of the law. 87 Ark. 528; 91 Ark. 43.
(c) The right to claim exemption from seizure under the writ was waived. 69. Ark. 256.
2. The specific objection to appellee's fourth instruction was not made at the time of the trial, and it will not now be considered. 80 Ark. 225; 87 Id. 396; 88 Id. 181; 90 Ark. 108. The instruction was, however, correct, 74 Ark. 340.
3. No demand was necessary. Kirby's Dig. § 6006.
4. The statute of limitations was not pleaded, and was therefore waived. 77 Ark. 379. Moreover, the instruction requested upon this point was erroneous. 76 Ark. 405.
5. The verdict is amply supported by the evidence.
6. The appointment of a guardian ad litem was required by Kirby's Dig., § 6023.
7. The summary judgment against M. Levy, surety on the bond, was authorized under sections 4684 and 6870, Kirby's Digest, and was properly rendered. 78 Ark 237.
This action was brought by Nellie McTiernan against J. B. Sibeck and his wife, and Mona Sibeck, before a justice of the peace to recover possession of a certain diamond ring. She made the affidavit required by the statute as a condition precedent for suing out an order of delivery; and it was issued by the justice of the peace for the possession of the diamond ring, and at the same time a summons was issued for the defendants. To secure the execution of the order of delivery, plaintiff executed a bond with sureties, conditioned as required by law; and the order and summons were served upon the defendants; and the defendant, J. B. Sibeck, and M. Levy, as surety, executed a bond to the plaintiff, in the sum of three hundred dollars, to the effect that the defendant, J. B. Sibeck, would perform the judgment of the court in this action, which was approved by the constable to whom the order of delivery was directed; and the defendants were allowed to retain possession of the diamond ring. The defendant Mona Sibeck being a minor, a guardian ad litem was appointed for her, after she was served with process, and he, as such guardian, answered and denied that plaintiff was the owner of the property in controversy, and denied all the allegations contained in the statement of the cause of action filed by the plaintiff. The record fails to show the defenses of the other defendants.
In a trial before the justice of the peace the plaintiff recovered judgment against the defendants for the diamond ring or its value, one hundred and fifty dollars, in the event its return could not be had, and twenty-five dollars for its detention; and the defendants appealed to the Pulaski Circuit Court.
On the 26th day of March, 1909, the issues in this cause came on for trial before a jury in the circuit court. Evidence was adduced which tended to prove the following facts: Plaintiff and Andy Graney were engaged to be married. She was the owner of the ring in controversy, and in October, 1904, loaned it to him, and allowed him to hold it until he died, which occurred on the 4th day of November, 1907. He was in possession of it at his death. After that it was delivered to the defendant, Mrs. Sibeck. About the 5th day of November, 1907, plaintiff demanded possession of the ring of Mrs. Sibeck, and she failed to deliver it. A short time after that plaintiff met J. B. Sibeck on the street, and ascertained that he had the ring, and demanded it, and he refused to deliver possession. On the 9th day of December, 1907, she brought this action. The ring is worth $ 150.
Evidence was also adduced which tended to prove as follows: Graney gave the ring in controversy to Mona Sibeck in his lifetime, and she exercised ownership over the same, and had it on her finger at the trial in the circuit court, claiming it as her own.
The court, over the objections of the defendants, at the instance of plaintiff, instructed the jury as follows:
And refused to instruct the jury at the request of the defendants, in part, as follows:
And the court instructed the jury, in part, at the instance of defendants, as follows:
"You are instructed that the plaintiff must win, if she win at all, upon the strength of her own title."
The jury returned a verdict in favor of the defendant, Mrs Sibeck, and in favor of the plaintiff against the defendants, J. B. Sibeck and Mona Sibeck for the possession of the ring or its value, $ 150, with interest at the rate of 6 per cent. from date of this action. Upon this verdict the court ordered and adjudged that plaintiff recover nothing of Mrs. Sibeck, and that she recover of and from the defendants, J. B. Sibeck and Mona Sibeck, the ring in controversy, or, in the event a return cannot be had, she recover of them its value, one hundred and fifty dollars, and that she recover of them twenty-four dollars and thirty-five cents the interest on the value of the ring from the day of the commencement of this action to the date...
To continue reading
Request your trial- Craig v. O'Rear
-
Browne-Brun Wholesale Grocery Co. v. Hinton
... ... more favorable than he was entitled to. Henderson v ... State, 91 Ark. 224, 120 S.W. 966; Sibeck v ... McTiernan, 94 Ark. 1, 125 S.W. 136 ... It is ... next insisted that the court erred in instructing the jury ... that, ... ...
-
Hamilton v. Rankin
...if the property could not be set apart appellant would be entitled to judgment for the value thereof. 65 Ark. 448; 10 Ark. 86; 42 Ark. 100; 94 Ark. 1. W. Smith and H. L. Ponder, for appellee. It is clear from the evidence that Rankin was a bona fide purchaser for value and without notice of......
-
Faulkner v. Mowry, 5-1408
...of what actually happened to the property. Appellant relies on such cases as Harkey v. Tillman, 40 Ark. 551, and Sibeck v. McTiernan, 94 Ark. 1, 125 S.W. 136. These cases hold that one who wrongfully detains personal property and refuses to surrender it on demand is liable in a replevin act......