Storms v. White

• Decision Date: 28 June 1886
• Citation: 23 Mo.App. 31
• Parties: ARTHUR STORMS, Respondent, v. N. M. WHITE, Appellant.
• Court: Kansas Court of Appeals

23 Mo.App. 31

ARTHUR STORMS, Respondent, v. N. M. WHITE, Appellant.

Court of Appeals of Missouri, Kansas City.

June 28, 1886

APPEAL from Carroll Circuit Court, HON. JAMES M. DAVIS, Judge.

Affirmed.

The case is stated in the opinion.

HALE & SONS, for the appellant.

I. The refusal of instructions asked by defendant was erroneous. They complied, substantially, with all the requirements of the stray law. Rev. Stat., sects. 7333-7336.

II. The law presumes that every man has a lawful fence around his field. Since this is the requirement of the law, the burden of proof is not on defendant to show it.

III. The jury were not told to find the value of the property, nor were they told to find defendant's interest in the property. Both of these are necessary. Mix v Kepner, 81 Mo. 96.

IV. The instructions given for plaintiff amounted to a demurrer to the evidence, and took the case away from the jury.

JAS. F GRAHAM and L. H. WATERS, for the respondent.

I. The court committed no error in giving plaintiff's instructions. When defendant relied upon the provisions of the " stray law" to justify his detention of plaintiff's cattle, he was required to prove such state of facts as would bring him within the statute. The only interest defendant had, or could have had, in the cattle depended upon the fact, whether they " broke" into his inclosure through a " lawful fence." In Mix v. Kepner (81 Mo. 93)," the property was found to be in the possession of plaintiff" while the " title was found to be in defendant; " such, also, was in the case of Chapman v. Kerr (80 Mo. 158).

II. Defendant's instructions, except the first (which was given), were properly refused. There was no evidence to warrant them, nor was there any issue under which such evidence could have been introduced.

PHILIPS P. J.

This is an action of replevin. Petition in the usual form. Under the order issued thereon, the sheriff took and delivered the property to plaintiff. The answer pleaded the general issue, and then pleaded specially that defendant was in possession of the cattle in controversy, and that defendant had taken the cattle up, and held them under the stray law; that said cattle had broken into the premises of defendant, inclosed with a lawful fence; whereupon the defendant proceeded to give the notice, as provided by statute, preparatory to posting said animals as strays. The reply tendered the general issue.

The bill of exceptions recites. as stated in appellant's abstract, that: " The evidence on the part of plaintiff tended to prove his ownership of the property in question, and damages to the amount of one hundred dollars, and that defendant owned land on each side of plaintiff's pasture, from which the stock strayed; that the fence between the lands of plaintiff and defendant was not a lawful fence as required by law.

" The evidence offered by defendant tended to prove the allegations in the answer, except as to lawful fence."

The only evidence set out in the abstract, furnished this court, relates to the giving of the notice. Verdict and judgment for plaintiff; from which defendant as appealed.

I. The only errors complained of arise on the action of the court in giving and refusing instructions. The first instruction given for plaintiff, told the jury that if they found from the evidence that the cattle in controversy belonged to the plaintiff, they should find for him, unless they further found from the evidence that they were taken up by defendant on his premises, inclosed with a lawful fence. In which latter event they would find for the plaintiff as to the cattle, and for defendant as to costs of suit.

It may be as well here to observe that it is manifest from this and...