Hursh v. Starr

49 P. 618, 6 Kan. App. 8, 1897 Kan. App. LEXIS 249

• Court: Court of Appeals of Kansas
• Decided: July 16, 1897
• Docket: No. 180
• Status: Published

Opinion

Mahan, P. J.

This was an action of replevin to recover the possession of twenty head of cattle. The plaintiff claimed absolute ownership. The defendant admitted possession in himself, but justified under a writ of execution and denied the ownership of plaintiff. Upon the trial, the plaintiff offered evidence tending to show, and it does in fact show, prima facie, that he was the owner of the property, and that he demanded it from the plaintiff before bringing the action. It was developed, however, upon cross-examination, that at the time the levy was made in the first instance, the plaintiff gave to the defendant a receipt for the property, promising to safely keep it. A demurrer was sustained to the evidence, the case taken from the jury, and a judgment entered for the defendant, ordering a return to him of the property, or, in case the property could not be returned, a personal judgment of three hundred dollars against the plaintiff.

In addition to the answer of the defendant admitting possession in himself and justifying under the writ, there was a stipulation at the beginning of the hearing to the effect that the property was levied upon by the defendant, as recited in his answer, and, in effect, that he was in possession of the property. The value of the property was likewise fixed by the stipulation. The plaintiff saved an exception to the ruling of the court sustaining the demurrer to his evidence, made a motion for a new trial, specifying that action of the court as one ground of error, and now asks a reversal of the judgment upon these assignments of error : First, that the court erred in sustaining the demurrer; second, that the court erred in rendering judgment in favor of the defendant and against the plaintiff for costs ; third, that the court erred in rendering judgment in favor of the defendant and against the plaintiff for a return to the defendant of the property, or the value thereof in the sum of three hundred dollars in case a return could not be had ; and, fourth, that the court erred in overruling the plaintiff’s motion for a new trial.

We think all the assignments of error should be sustained. The evidence was abundant to sustain the ownership of the plaintiff. The evidence was clear that.he demanded possession before the bringing of the suit, and was refused. The possession of the defendant is admitted by the pleadings and by the stipulation of facts, so that the matter of the receipt being given by the plaintiff in the first instance became irrelevant and immaterial under the issues. It was not proper to permit the defendant as an officer to first say, by his answer and by his stipulation, that he had possession under his writ, and then ask the court to hold, upon his demurrer, that he. had not possession. And even conceding that he had this right — that he might insist on possession under his answer and stipulation, and upon the evidence insist that he did not have the possession of the property and did not detain it from the plaintiff at the beginning of the suit, yet it would be error in such case to render judgment that the plaintiff should return to him the property which he never had and did not claim to have, which he denied having in order to get a judgment against the plaintiff. If he did not have it — did not detain it at the beginning of the action, the court did not have authority to restore him something he never had. The motion for a new trial should have been granted.

The judgment is reversed, and the case remanded to the District Court with instruction to grant a new trial.