Blake v. Powell

26 Kan. 320

• Court: Supreme Court of Kansas
• Decided: July 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

This is an action for replevin, in which the plaintiff here was plaintiff in the court below, and the property sought to be recovered a general stock of merchandise taken by the defendant in his capacity as sheriff of Elk county, by virtue of certain orders of attachment issued out of the district court of said county against the firm of Carter & Hemenway. Verdict and judgment below were for defendant. A motion for a new trial was duly made and overruled, and now this case is before us for review.

The plaintiff claims as purchaser from one of the firm of Carter & Hemenway, two or three days before the levy of the attachment. In support of his claim he put one Hanson on the stand, who testified that on the day of the levy he was in actual possession of the goods and the building in which they were situated; that he held such possession for the plaintiff as his servant or agent; that such possession was absolute and exclusive; and that while so in possession the defendant made the levy. This was the scope and limit of the inquiries put to the witness upon the direct examination; in other words, the plaintiff was resting upon evidence of possession, with its consequent presumption of title as the basis of his right of recovery, and this possession was limited to the very day of the attachment. Upon cross-examination the witness testified, over the objection of plaintiff, that he had been in the store for about two months; in whose employ he had been before the day of the levy; that he had first been employed by the plaintiff on the Thursday evening preceding Monday, the day of the levy; that the plaintiff then requested witness to take charge of the store for him; that he did so in obedience to this request, and continued there selling until the levy; that he had never been discharged by the party in whose employ he had been prior to said Thursday, nor ever informed by him of any right or title of plaintiff to the goods. In other words, the plaintiff interrogated as to the possession for a single day for the purpose of showing title, and on cross-examination the defendant inquired as to the length of time such possession had continued, and the circumstances under which it originated; and this for the purpose of weakening the presumption of title flowing from mere possession.

Was such cross-examination extended to limits so improper ás to be erroneous and compel a reversal of the judgment? We think not. A cross-examination is not nation,limits limited to the very day and exact fact named in the direct examination. It may extend to other matters which limit, qualify or explain the facts stated on the direct examination, or modify the inferences deducible therefrom, providing only that such matters are directly connected with the facts testified to in chief. The testimony sought on cross-examination does not violate this rule. If possession for one day is shown on the one side, the duration of that possession may be inquired into on the other. If the witness states on his direct examination that he holds possession as agent for another, inquiry may be directed on cross-examination as to the circumstances under which such agency originated. The case of Thornburg v. Hand, 7 Cal. 554, is very strongly in point. It was an action of replevin brought against an attaching creditor of the plaintiff’s vendor, and plaintiff having shown no title but possession, it was held competent for defendant to cross-examine as to the nature and length of the possession, to show that it was colorable, and to test the means of the witness’s knowledge. In Lamprey v. Munch, 21 Minn. 379, the question being as to the execution of a note, and a witness for the plaintiff having testified as to such execution, it was held competent and proper to cross-examine him as to all the circumstances connected with it, and among others, as to the consideration of the note. See also Coates v. Hopkins, 34 Mo. 135; D. & M. Rld. Co. v. Von Stienburg, 17 Mich. 109; Haynes v. Ledyard, 33 Mich. 319; Ferguson v. Rutherford, 7 Nev. 385; A. T. & S. F. Rld. Co. v. Blackshire, 10 Kas. 477.

But further, plaintiff does not challenge the competency of such testimony, but only the order or manner in which it was introduced to the jury. Section 275 of the code prescribes a certain order unless the court for special reasons otherwise directs. Upon this, counsel argue that if any change was made in the order of proof, special reasons therefor should be stated, so that this court may pass upon their sufficiency. We think the order of proof is a slight matter — that the competency is the important fact; and it is seldom that a case will be presented in which the judgment of the district court will be reversed because of the manner or order in which competent testimony is presented. If the testimony is such that a jury ought to consider it, the time or manner in 2' bile “?n^e- which it is presented is of comparatively little moment. Only in an extreme case will it be held that the manner or order of presenting competent testimony violates a substantial right of either party. (Rheinhardt v. The State, 14 Kas. 322.)

A • further objection is this, that the records of certain judgments against Carter & Hemenway were admitted in evidence. The objection to these judgments is, that the attachments upon which they were based were not in evidence, and also that it was not then shown that the property seized by the sheriff belonged to both or either of the defendants in the attachment suits. The objection is not well taken. Whether the judgments should be admitted in evidence before proof of the ownership of the property attached, was a mere question of the order of the admission of testimony, and as heretofore stated, largely within the discretion of the court; and while the attachments themselves were never in evidence, yet any necessity therefor was waived by the admissions of the plaintiff. We do not understand these admissions in the narrow and limited sense now placed upon them by counsel. When they admit that the property was seized by the sheriff under attachment proceedings, the admission goes to the validity of those proceedings. The concession is not, of course, that the property belonged to the defendants in the attachment suits, but that the plaintiff, with proper writs of attachment against Carter & Hemenway, or one of them, seized the goods on the day spoken of. This is very clear from the language of the admission, as well as from that of the objection to the judgments. The judgments that were offered in evidence were adjudications as against Carter & Hemenway that the attachments were properly levied, and with the admissions left for the jury the consideration of the single question as to whether the property at the time of the attachment belonged to the plaintiff or to Carter & Hemenway, or either of them. It was the duty of the court to pass upon the validity of the attachment proceedings and the consequent judgments, and it committed no error in its instructions in stating to the jury that the principal question of fact was as to the ownership of the property at the time of the attachment. Under the testimony, especially the testimony of the witness Carter, one of the firm of Carter & Hemenway, the jury properly found that the ownership was then in one of said defendants. There was certainly enough to justify such a verdict, and nothing upon which it can be said as a matter of law that the jury ought to have found otherwise.

Other questions made by counsel, save one, are fully covered by repeated prior decisions of this court, and need not be noticed. That single objection is, that the jury found the value of the stock of goods as a whole, and did not find the separate value of each particular article in the stock. Plaintiff claims that he has a right to return such portion of the stock as he still retains, and have a reduced judgment of value to that extent, and that therefore the jury should have found the value of each separate article in the stock of goods. It is enough to say in reply to this objection, that it was not presented at the time the verdict was returned. Perhaps if the plaintiff had then insisted upon the jury’s finding the value of any particular article which he desired to goods in buiir, return, it might have been proper to require the jury to so find; but in the absence of any such request, it would be absurd to hold that when the replevin is of a stock of goods, as in the present case, the jury is bound to state in their verdict the value of each particular article. See further upon this matter, the remarks of Mr. Justice Valentine, in the opinion filed in the case of Knox v. Noble, 25 Kas. 432.

We see nothing else in the record that requires notice. The question in cases of this kind is almost always one purely of fact, and settled by the verdict of the jury. In this case, upon the testimony we think the jury found as it ought to find, and therefore the judgment must be affirmed, and it is so ordered.

All the Justices concurring.