Wade v. Gould

• Decision Date: 27 November 1899
• Citation: 1899 OK 125,59 P. 11,8 Okla. 690
• Parties: RICHARD H. WADE v. EDWARD F. GOULD
• Court: Oklahoma Supreme Court

1899 OK 125

59 P. 11

8 Okla. 690

RICHARD H. WADE v. EDWARD F. GOULD

Supreme Court of Oklahoma

Decided: November 27, 1899

SYLLABUS

¶0 1. REPLEVIN--Property--Judgment. One suing in replevin to recover a cow taken by the defendant, but which is, and always was, the property of the plaintiff, is entitled to the cow and the increase since conversion, and, in the alternative, to the value of the cow and increase at the time of judgment.

2. PLEADING--Amendment. It is the function of a supplemental petiti n to supply the facts which may be necessary to a complete determination of the rights of the plaintiff and defendant touching the subject-matter of the suit, upon the facts existing at the time of the rendition of the judgment, and which would vary the relief to which the plaintiff would have been entitled at the commencement of the act on; and it is in the sound discretion of the court to allow such an amendment.

3. APPEAL--Case-Made--Certificate. Where the case is made and settled for the supreme court, and the party desires that it shall be shown that the case contains all the evidence that was introduced at the trial, a statement to that effect should be inserted in the case itself. Otherwise, the evidence will not be so certified here as to justify its examination for alleged error.

4. CASE-MADE--Amendment--Rule Approved. A case-made for the supreme court cannot be amended or supplemented in the supreme court by inserting anything therein or attaching anything thereto which did not belong to the case-made, and constitute a part thereof when it was originally settled and signed by the judge and attested by the clerk below. The decision of the trial judge as to the truthfulness of the case-made is conclusive and final,--at least, until the certified record is shown to be intentionally false and to have been fraudulently prepared, or that there was a want of jurisdiction in the court. (Ryland v. Coyle, 7 Okla. 226, affirmed.)

STATEMENT OF THE CASE.

This was an action in replevin begun in the probate court of Kingfisher county for the recovery of the possession of four cows, valued at $ 55. The petition upon which the case was tried averred that the plaintiff had tendered all charges and dues claimed by the defendant upon the cattle for pasturage, and made a tender of the same into court, subject to its order. The value of the cattle was claimed together with $ 25 damages. The defendant answered generally, and, the matter having been presented to the probate court, it was appealed to the district court, where the plaintiff filed a supplemental petition, averring that there had been born to and was an increase of, the stock originally claimed in the plaintiff's petition, since the filing thereof, six calves, two of which were yearlings, and that all of them were a part of the original stock set forth in the petition, and that the increase was of the value of $ 60, together with $ 25 damages.

The defendant demurred to the supplemental petition upon the grounds that (1) there were several causes of action improperly joined in the petition; and (2) that there was another action pending between the same parties in this court for the same cause, and that said action had been duly tried and determined; and (3) because the petition did not state facts sufficient to constitute a cause of action.

The demurrer was overruled, and thereupon the defendant answered, averring (1) a general denial; and (2) that there was a cause of action pending in this court on appeal from the probate court between the same parties, involving the same subject matter and that the said cause had been since that time duly tried and determined.

The case was tried to the judge of the district court, without a jury, and special findings of fact requested, which were made as follows: "That on or about the 1st day of April, 1896, the plaintiff placed in the defendant's pasture, for keeping, four head of cattle mentioned in the supplemental petition, to be kept by the defendant and pastured for a consideration of 20 cents per head per month; that in August of that year the defendant requested the plaintiff to remove his cattle and take them out of that pasture, and that the plaintiff failed and neglected at that time so to do; that in January, 1897, the plaintiff tendered in money to the defendant the full amount in which he was indebted to the defendant for the keeping of said cows, and demanded possession of the cows; that the defendant refused to accept such tender unless the plaintiff would consent to dismiss a certain cause of action then pending, in which the present plaintiff was plaintiff and the present defendant was defendant; that, of these four cows, two had calves in the spring of 1897, and all four produced calves in the spring of 1898; that all of said cattle (cows and calves) were in the possession of the defendant at the time of the filing of the supplemental petition in this case. The court finds that there was no other or further demand made for the possession of any of the stock in controversy, except that made in January, 1897; and on these findings of fact the court concludes, as matter of law, that the plaintiff was entitled to the immediate possession of the four head of cattle originally placed in the pasture of the defendant, at the time of the commencement of this suit, and that pending this action he has become entitled to the possession of the increase and product of these four cows, and is now entitled to the possession of all of said property. The court finds the value of the property now detained by the defendant from the plaintiff to be $ 163. The court finds that there is evidence establishing the fact that the use of said cows for the purpose of producing milk and butter while they have been detained was of the value of $ 54 over and above the reasonable cost of their keeping. The court finds as a matter of law, that the defendant is not entitled to anything for keeping said cattle after his refusing to deliver them up after the tender of all due on them had been made. The judgment in this case will be that the plaintiff have and recover the possession of all the property specified in the petition and supplemental petition, and, if the possession thereof cannot be had, the sum of $ 163, their assessed value, and, in addition thereto, damages in the sum of $ 54, and the costs of this suit." To which findings and conclusions the defendant excepted.

Error from the District Court of Kingfisher County; before John C. Tarsney, District Judge.

Action by Edward F. Gould against Richard H. Wade. Judgment for plaintiff. Defendant brings error. Affirmed.

W. A. Taylor, for plaintiff in error.

W. W. Noffsinger, for defendant in error.

MCATEE, J.:

¶1 The assignments or error were (1) in overruling the motion for a new trial and the demurrer to the defendant's supplemental petition; and (2) in attempting to assume jurisdiction of the subject-matter set out in the defendant's supplemental petition; and (3) in excluding testimony tending to show another action pending between the same parties, and involving the same subject-matter, at the time the action was commenced; and (4) in excluding competent, relevant, and material testimony offered by the plaintiff in error; and (5) in the amount of the recovery, because there was no evidence to support the finding.

¶2 Touching the assignments of error upon the filing of the supplemental petition, the special findings of fact made by the court show that the calves sued for therein were the offspring of the four head of cows whose recovery was sought for in the original petition, and that this increase had come from the cows after the time they were placed by the plaintiff in the possession of the defendant for the purpose of pasturage.

¶3 It was said in Morris v. Coburn, (Tex. Sup.) 9 S.W. 345, that "one suing to recover a cow taken by defendant, but which is and always was the property of the plaintiff, is entitled to the cow and the increase since the conversion, and in the alternative, to the value of the cow and increase at the time of judgment."

¶4 And it was said in Garth v. Everett, 16 Mo. 490, that if one takes and converts a flock of sheep, and during the pendency of a suit to...