Killey v. Mayes

290 P.2d 837, 178 Kan. 628, 1955 Kan. LEXIS 333

Opinion

The opinion of the court was delivered by

Smith, J.:

This was an action in replevin for lespedeza seed. Judgment was for the plaintiff for one half the seed. The plaintiff has appealed claiming the court should have awarded him all of it.

The record is not as complete as might be. We are not favored with the pleadings or the judgment. It appears, however, to be a dispute between the plaintiff, who owns a farm, and defendant, who was a tenant on at least part of it. Apparently defendant is conceded to be a tenant of plaintiff on at least that part of the farm where corn was the crop. The trouble arose over a piece of ground where lespedeza had been planted. It was combined. The result was 3,595 pounds of lespedeza seed. It was in possession of defendant who claimed a tenant’s share of it. The plaintiff claims to be entitled to all of it. The trial court seems to have found the plaintiff to be entitled to only half.

The plaintiff asks us to examine the evidence only and reach a different conclusion without either the pleadings or the judgment. This, we cannot do. Even should we have the pleadings, plaintiff would be met by our rule that we will not weigh evidence.

The judgment of the trial court is affirmed.