Morgan v. Jackson ( 1904 )

Roby, J.

Appellants brought their suit in replevin to recover possession of certain promissory notes executed by divers persons to John LI. Davidson, of which they averred they were legally entitled to possession, and “of which notes defendant has possession without right, and wrongfully detains from the plaintiffs.” Answer in general denial, trial by jury, verdict and judgment in favor of appellee. Errors assigned are that the court erred in overruling appellants’ motion for judgment on the answers to interrogatories returned by the jury, and that the court erred in overruling their motion for a new trial.

Appellants’ claim at the trial was that the notes in controversy had been pledged to them as collateral security for money loaned by them to the payee Davidson; that they were placed in possession of such notes; that, the maker of one of the notes desiring to pay it, they handed the package to Davidson at his request, in order that he might take out that note; that he was delayed in doing so, and left the package in his desk, from which it was taken by the appellee without right. Appellee claims that Davidson had induced him to go into the business with him, and to advance money to him, pledging the notes in controversy to secure the repayment of the sum so advanced; that his possession of sucli notes was rightful, under the terms of such agreement; and that the same were not pledged to appellants, who he asserted never had possession of the notes in their own right.

The controversy was one of fact. It is not one where there was an absence of evidence upon either side of any material proposition involved, hut one in which the evidence was conflicting and irreconcilable. The particular province of the jury is to settle such disputes, and no warrant exists for the setting aside of the verdict returned by it in the appellee’s favor.

The court gave an instruction to the effect that the burden of proof rested upon the plaintiffs (appellants) to establish, among other facts, “whether the defendant wrongfully detains possession of said property from the plaintiffs.” In Krug v. Herod, 69 Ind. 78, the court said: “The gravamen of appellee’s complaint, in so far as the appellant was concerned, was the allegation therein that he had possession, without right, of the personal property sued for, and unlawfully detained the same from the appellee, in Montgomery county. This allegation was denied by the appellant, and the burthen of the issue was on appellee.” To the same effect are: Entsminger v. Jackson, 73 Ind. 144; Ridenour v. Beekman, 68 Ind. 236. It is well established that the plaintiff in replevin must show the defendant to be in possession of the goods replevied. West v. Graff, 23 Ind. App. 410, 413. In the absence of other evidence, ownership or right of possession in the plaintiff, and possession held by the defendant, would undoubtedly require the inference and finding that the defendant’s possession was wrongful; but such fact does not change the burden of proof, which remains with the plaintiff. But in any event there can be no reversal, for the reason that the answers to interrogatories affirmatively show that the appellants were not harmed by the instruction. Elliott, App. Proc., §642. Interrogatory number eight and its answer were as follows: “Had not the said John II. Davidson, prior to August 17, 1901, pledged the notes in controversy to the plaintiffs as collateral security for the money before that time loaned by appellants to said Davidson ? A. No.” The eleventh interrogatory and answer were as follows: “Did not the plaintiffs, after the notes in controversy had been pledged to them by the said John II. Davidson, keep said notes in their safe and under their control until August 17, 1901 ? A. Yes.” This interrogatory was evidently framed with the expectation that the answer to interrogatory number eight, preceding it,' would be in the affirmative. The assumption contained in the interrogatory itself is not equivalent to a finding by the jury. The answer relates to possession of the notes, and not to the question of a pledge of them having been made. So construed, there is no conflict between the answers to numbers eight and eleven.

The plaintiff in replevin must recover upon the strength of his own title. Miller v. Lively, 1 Ind. App. 6; Easter v. Fleming, 78 Ind. 116. When it was established that the appellants had no title or right of possession to the notes in suit, that was an end to the case. Miller v. Lively, supra.

Interrogatory number eight was also conclusive against appellants upon their motion for judgment notwithstanding the general verdict.

Judgment affirmed.

Henley, C. J., Bobinson and Comstock, JJ., concur. Wiley, P. J., dissents. Black, J., took no part.