Torrey v. Campbell

• Decision Date: 08 October 1918
• Docket Number: 9309.
• Citation: 175 P. 524,73 Okla. 201,1918 OK 586
• Parties: TORREY v. CAMPBELL.
• Court: Oklahoma Supreme Court

175 P. 524

73 Okla. 201, 1918 OK 586

TORREY v. CAMPBELL.

No. 9309.

Supreme Court of Oklahoma

Oct. 8, 1918

Syllabus by the Court.

Under section 4657, subd. 3, Rev. Laws 1910, actions for the specific recovery of personal property are required to be brought within 2 years.

The statute of limitations, as to lost personal property, or personal property in the hands of a thief, begins to run from the time of the wrongful taking or possession, provided there is no fraud or attempt at concealment, or removal from the jurisdiction of the court.

When lost personal property, or personal property that has been stolen, is held in open and notorious possession by the party in whose possession it is found, for a period of 2 years from the date of the wrongful taking or wrongful possession, the right of action therefor by the original owner is barred by limitation.

While the statute of limitation is an affirmative defense, that must be pleaded and proved by the party asserting or claiming it, yet there is a well-defined exception to this rule. When the petition or bill of particulars shows that the cause of action asserted is barred by the statute of limitation applicable to the particular cause of action set up, and the statute of limitation is pleaded as a defense thereto, the burden is on plaintiff to plead and prove facts relieving such action from the bar of the statute of limitation.

Commissioners' Opinion, Division No. 2. Error from County Court, Osage County; Elmer J. Black, Judge.

Action by Emma Torrey against W. E. Campbell. Judgment for defendant, and plaintiff brings error. Affirmed.

George S. Hill, of Bartlesville, for plaintiff in error.

C. C Julian and J. L. Barnes, both of Bartlesville, for defendant in error.

DAVIS C.

This is an appeal from a judgment of the county court of Osage county, Okl., in favor of defendant in error, hereinafter referred to as defendant, and against plaintiff in error hereinafter referred to as plaintiff. In September, 1911 plaintiff was the owner of a Jersey heifer about eight months old, and in the month of September, 1911, plaintiff took said heifer to a ranch owned by P. M. House, and left her there for the purpose of pasture. Some time in November, 1911, the heifer disappeared from the pasture, and her whereabouts was unknown to plaintiff until July, 1916, when plaintiff found her in the pasture of defendant. Plaintiff made demand for the possession of said cow, and on a refusal of defendant to comply therewith the instant action was instituted before a justice of the peace of Osage county to recover the possession thereof. Judgment was rendered in the justice court for plaintiff, and an appeal was taken by defendant to the county court. Defendant pleaded the statute of limitation, and at the conclusion of the evidence adduced by plaintiff a demurrer to the sufficiency of the evidence was interposed. The demurrer was sustained, and judgment rendered in favor of defendant. A motion for a new trial was filed and overruled, and from the action of the court in overruling this motion an appeal is prosecuted to this court.

There is but one question that presents itself in this case for determination. Was the action barred by the statute of limitations? It is urged by counsel for the defendant that the property in question was held in open and notorious possession by the defendant for more than 2 years, and that by reason thereof the plaintiff's cause of action is barred. The evidence discloses that plaintiff was residing at Bartlesville, Okl., in 1911; that the pasture of Mr. House is located about three miles northwest of Bartlesville, Okl., in Osage county; that the plaintiff, a short time after taking the cow in question to the pasture of Mr. House, removed to Electra, Tex., and resided there for a period of 18 months, at the expiration of which time she returned to Bartlesville, Okl. A short time after the heifer disappeared Mr. House notified plaintiff, and it appears that Mr. House had an advertisement run in a paper at Bartlesville, stating that said heifer had disappeared from his pasture. Plaintiff made no search for the heifer until the expiration of the 18 months, at which time she returned to Bartlesville, Okl., and had her husband make an attempt to locate the property.

In July, 1916, plaintiff was informed that her cow was in the pasture of the defendant. In response to this information she went to the ranch owned by defendant, made inquiry of the man in charge of the ranch, and at her request the man in charge of the ranch drove the cow to the house, where she was inspected by plaintiff and identified as her property. Plaintiff made demand on defendant for the possession of the cow, and on a refusal to surrender the possession this action was instituted. The evidence discloses that, at the time that the plaintiff went to the ranch for the purpose of finding out whether or not the cow in question was her property, the cow was found in the lot or pasture running with the other cows. The ranch of Mr. Campbell is located in Osage county, six or seven miles from Ochelata, and is about a quarter of a mile from a public highway. It appears that the husband of plaintiff did not go in this particular locality when looking for the lost cow, and plaintiff obtained her information as to the whereabouts of her property from Mr. House, and Mr. House was informed by Mr. Sturm, one of the plaintiff's witnesses, that the long-lost cow was on the ranch of defendant.

At the close of the plaintiff's testimony a demurrer was interposed by the defendant, on the ground and for the reason that the evidence offered by plaintiff affirmatively showed that the cause of action was barred by the 2-year statute of limitations, in that it did not accrue within 2 years next preceding the institution of the suit. This question has been before this court a number of times for determination, and it has been uniformly held that the two-year statute of limitation is applicable to an action for the recovery of stolen property, where the property is held in open and notorious possession and within the jurisdiction of the court.

The first case before this court was the case of Vaut et al. v. Gatlin, 31 Okl. 394, 120 P. 273. This case arose before statehood, and was before the Court of Appeals of the Indian Territory. The decision rendered by the Court of Appeals of Indian Territory is reported in Gatlin v. Vaut, 6 Ind. T. 254, 91 S.W. 38. The case was reversed by the Court of Appeals of Indian Territory, and was subsequently brought before this court for determination. On March 1, 1901, Mrs. Fannie Gatlin lost two mules, which were stolen from her near Ireton, in what is now McClain county. In 1904 the mules were found in the possession of Mr. Vaut, and a replevin action was begun for the possession thereof. In November, 1902, Mr. Vaut bought the mules in question from a man in Ft. Worth, Tex., and the next month brought them to Mayesville, Okl., at which place Mrs. Gatlin located them. Defendant pleaded the statute of limitation, and this court held, in an opinion by Judge Turner, that the action was not barred, for the reason that limitation did not begin to run until the mules were brought into the state of Oklahoma, in December, 1902, and the action was begun in September, 1904, less than two years after the property was brought into the jurisdiction of the courts of this state. The rule announced in case of Gatlin v. Vaut, 6 Ind. T. 254, 91 S.W. 38, was quoted with approval. That part of the opinion which is pertinent to the facts in this case is as follows:

"The reported cases involving the question here raised are few; and none, so far as we have been able to find, are exactly in point. In all of them, where the statute has been held to bar a recovery, the defendant (or the defendant and his grantors) was shown to have been in the peaceable, open, and notorious possession of the property for the time named by the statute. In none of them was it held that the thief's possession, especially where he secreted the property, could be tacked to that of the defendant, in order to complete the bar. We do not mean to suggest that a thief could not, in any event, plead the statute in replevin. If he had held the property openly and notoriously in the community where the larceny occurred, he could undoubtedly do so, not so much because he was entitled to the protection afforded by the statute, but because of the laches of the plaintiff. But where he conceals the property, and removes both it and his person from the jurisdiction of the court, and, so long as such acts continue, as against him, the running of the statute is certainly suspended."

The rule announced in Gatlin v. Vaut, supra, has been followed in all the cases decided subsequent thereto. Shelby v. Shanner, 28 Okl. 605, 115 P. 785, 34 L. R. A. (N. S.) 621; McGehee v. Alexander, 33 Okl. 699, 127 P. 480. In the case of Adams et al. v. Coon, 36 Okl. 644, 129 P. 851, 44 L. R. A. (N. S.) 624, this question was before the court for consideration, and Commissioner Robertson, speaking for the court, stated the rule as follows:

"As a general proposition, the statute of limitations, as to replevin actions for the recovery of lost or stolen property, begins to run from the time of the wrongful taking or possession, and not from the time when plaintiff first had knowledge thereof, if there was no fraud or attempt at concealment; and if such fraud or concealment exists, it must, in order to avail plaintiff, be the act of defendant himself." 34 Cyc. 1423.

The case of Adams et al. v. Coon, supra, is in all material aspects the same as the case at bar, and the rule applied in said case is applicable to the present action.

We are thoroughly convinced from a...