Smith v. force

• Decision Date: 25 September 1883
• Citation: 16 N.W. 704,31 Minn. 119
• Parties: John T. Smith v. Jacob F. Force
• Court: Minnesota Supreme Court

16 N.W. 704

31 Minn. 119

John T. Smith v. Jacob F. Force

Supreme Court of Minnesota

September 25, 1883

Plaintiff brought this action in a justice's court in Jackson county, to recover damages for the alleged conversion, by defendant, of a letter-case. The defendant had judgment, and the plaintiff appealed, on questions of law alone, to the district court, where the judgment of the justice was affirmed by Severance, J. Plaintiff appeals from the judgment of the district court.

The return of evidence made by the justice to the district court was entitled as follows: "Transcript of all the evidence given upon the trial of said cause before me on the 19th day of July, 1880," and the certificate at the end of the return was as follows: "I hereby certify that the foregoing is the testimony as given in said case, and that the same is correct substantially as given. A. C. Cook Justice of the Peace."

The judgments of the district court and of the justice are reversed.

A. D Perkins, for appellant.

Daniel Rohrer, for respondent.

OPINION

Gilfillan, C. J.

The complaint in this case is insufficient, because, being for a conversion, it alleges plaintiff's ownership of the property in the present tense; that is, at the time of filing the complaint, and not at the time of the conversion. But parties may at the trial waive such defects, and, where they do so, and try the cause precisely as though the proper allegations were in the pleading, it will be considered here as though such were the case. The parties so tried this case. No objection was taken to evidence of plaintiff's ownership before and at the time of the conversion, and such ownership and the conversion were fully proved, there being no evidence to the contrary. The arrangement between the parties -- that, if defendant insisted on taking the property in dispute, he might do so, and return it to plaintiff, if on his writing to the department, it did not claim the property as government property -- was wholly without consideration, and of no force as against a subsequent demand at any time by plaintiff for its delivery to him. On the evidence the plaintiff ought to have had judgment.

The rule stated in Hinds v. Am. Exp. Co., 24 Minn. 95, that though there be no request to the justice to return the evidence upon an appeal on questions of law alone the appellate court will consider the evidence, if it affirmatively appear that the justice has...