Cartright v. Smith , 15 Kan. 224 ( 1875 )

The opinion of the court was delivered by

Valentine, J.:

This was an action of replevin, brought by Cartright against Smith, in a justice’s court, for the recovery of a certain hog which belonged to Cartright. The hog trespassed upon Smith’s premises. Smith took it up. Cart-, right demanded the hog, and tendered Smith three dollars for damages, cost and expense. Smith refused to receive the tender, or to give up the hog. Cartright then replevied th^, hog from Smith, and still has possession of the same. The action was tried by the justice without a jury. It is difficult to determine from the record in whose favor the justice found, or intended to find. But the justice rendered judgment in favor of the defendant for three dollars damages, and rendered judgment in favor of the plaintiff for costs, and did not render any judgment concerning the property in controversy. The defendant .then took the case to the district court on petition in error. The district court reversed the judgment of the justice of the peace, and then rendered judgment in favor of said defendant Smith for his costs, both in the district court and in the justice-’s court. Now whether the said Smith wrongfully detained said hog or not, we cannot tell from the record. Whether the justice intended to find that Smith wrongfully or rightfully detained said hog, we cannot tell from the record. Whether the judgment in the justice’s court should have been for the plaintiff, or for the defendant, we cannot tell from the record. And therefore, whether the district court erred in its judgment or not, we cannot tell from the record. Perhaps it is fair, where a plaintiff institutes proceedings, and causes costs to be made, that he should pay such costs, unless he make the record show affirmatively that he should not pay them. The apparent reason given by the justice for imposing the costs upon the defendant is certainly not sufficient.

As it is not shown affirmatively that the court below erred, the judgment must be affirmed.

All the Justices concurring.