Stahley Land & Livestock Company v. Beckstead

• Decision Date: 29 October 1920
• Docket Number: 983
• Citation: 192 P. 1056,27 Wyo. 173
• Parties: STAHLEY LAND & LIVESTOCK COMPANY v. BECKSTEAD
• Court: Wyoming Supreme Court

192 P. 1056

27 Wyo. 173

STAHLEY LAND & LIVESTOCK COMPANY v. BECKSTEAD

No. 983

Supreme Court of Wyoming

October 29, 1920

ERROR to the District Court, Sweetwater County; HON. JOHN R ARNOLD, Judge.

Action in replevin by the Stahley Land and Livestock Co. against Mrs. Frank Beckstead and others. There was a judgment for defendants and plaintiff brings error.

Affirmed.

T. S Taliaferro, Jr., and P. W. Spaulding, for Plaintiff in Error.

The evidence established the ownership of the sheep in the Stahley Land and Livestock Company; neither plaintiff nor defendants claim any recorded ear marks or wool marks; the brand laws of the state as originally enacted did not include paint brands or wool marks that refer to brands made by hot irons; an act of 1913 for the first time, authorized the recording of a paint mark, but paint an wool marks are not prima facie evidence of ownership unless corroborated with other evidence; the allegations of defendants answer with reference to possession constitute a negative pregnant, (Ann Cas. 1917-A 668; 158 P. 174); the answer does not deny the allegations of the petition, (18 P & P 551; 11 P. 288).

N. R. Greenfield, for Defendant in Error.

The appellate court will not reverse the judgment if there was no evidence to sustain it. (Ketchum v. Davis, 3 Wyo. 164-167; Col. C. M. Co. v. Duchess M. M. & S. Co., 13 Wyo. 344, 256; Slothower v. Hunter, 15 Wyo. 189-304; Riordon v. Horton, 16 Wyo. 363-374; Yount v. Strickland, 17 Wyo. 526-534; City of Rawlins v. Murphy, 10 Wyo. 238-252; Saratoga Land & Investment Co. v. Jenson, 20 Wyo. 323; Stockgrowers Bank v. Gray, 24 Wyo. 18, 40; Hunt v. City of Laramie, 181 P. 137, 139). Defendant was in possession of the sheep at the commencement of the action; the burden of proof rests upon plaintiff and its recovery may be based upon the strength of its own title; an unrecorded mark or brand is no evidence of ownership except as it may serve to identify an animal belonging to a particular person; a recorded brand is prima facie evidence of ownership (2602 C. S. 1910) when corroborated with other evidence; failure to record brands and marks is considered an abandonment of them, (2607 C. S. 1910; State v. Dunn, 88 P. 335 (Idaho); a universal custom of the locality is to identify sheep by the wool brand alone, and to disregard ear marks; this custom has the force and effect of law. (12 Cyc. 1029). The plaintiff in error did not establish by its evidence that defendant in error had any of its sheep; the answer is a general denial and cannot reasonably be construed as a negative pregnant. (Ann. Cas. 1917-A 668; 13 Cyc. 1376). The Oregon case, 11 P. 280, is against the decided weight of authority. (Summerfield v. Stockton M. Co. 76 P. 243; Boswell v. Bank, 16 Wyo. 161).

BEARD, Chief Justice. POTTER, J. and TIDBALL, District Judge, concur. Hon. V. J. Tidball, Judge of the Second District Court, was called in and sat in place of Blydenburgh, J., who was unable to sit.

OPINION

BEARD, Chief Justice.

This is an action in replevin brought by the plaintiff in error against the defendants in error to recover the possession of certain sheep. The trial was to the court without a jury resulting in a judgment against the plaintiff. It brings the case here on error.

One of the errors assigned in the motion for a new trial is the overruling of a demurrer to the answer; but we fail to find any demurrer in the record, or any reference thereto, or ruling thereon, in any part of the record. At the close of plaintiff's evidence in chief its counsel objected to the introduction of any evidence on behalf of defendants on the ground that the answer was a negative pregnant and presented no issue. The record recites that the ruling on that objection was reserved by the court; and no direct ruling seems to have been made, but as the court admitted the evidence offered on behalf of defendants we assume that the objection was overruled, and therefore we will decide the point. It is alleged in the petition, "That plaintiff is the owner of, and entitled to the possession of about two hundred head of sheep, more or less, all of said sheep being earmarked with a crop on the right ear and an underhalf on the left ear. That defendants unlawfully, wilfully maliciously and wantonly detain possession of the said sheep from plaintiff, and refuse to deliver possession thereof to plaintiff." The answer is as follows: "Come now the above named defendants and answering the petition of the plaintiff herein say that they deny that the plaintiff is the owner of, or entitled to the possession of any of the sheep mentioned in said petition, or that the defendants or either of them unlawfully, or wilfully, or maliciously, or wantonly detain possession of said sheep or any of them from the plaintiff." The answer contains no denial of the defendants possession of the sheep, but it does deny that plaintiff was either the owner, or entitled to the possession of them. The plaintiff based its right to possession upon ownership, and the answer distinctly, separately and not conjunctively denied the ownership or right of possession by plaintiffs. The gist of the action was unlawful detention. Plaintiff averred the different manners in which it claimed the defendants wrongfully kept it out of possession; proof of any one of which would have entitled it to recover. Defendants specifically denied that it detained the sheep in either manner. The answer throughout is in the disjunctive. Had it been pleaded in the conjunctive there would have been...