Shellabarger v. Nafus , 15 Kan. 547 ( 1875 )

The opinion of the court was delivered by

Valentine, J.:

This was an action of replevin, brought by Mary A. Shellabarger against John H. Nafus. It appears from the record that the defendant was a constable; that he held an execution against the property of the plaintiff’s husband, one Solomon Shellabarger; that the constable levied said execution upon the property in controversy, as the property of the plaintiff’s husband; that the plaintiff then replevied the property, claiming the same as hers, and claiming that it never did belong to her husband. When the constable levied on said property he found it on land occupied by the plaintiff and her husband as their homestead, the title to which land was in her husband. But the property was not in the. actual possession of either. It had been in the actual custody of the husband, but it does not appear from the record that it was ever in the actual custody of the plaintiff. The whole case in the court below depended entirely upon who owned the property. All other questions were merely incidental or subsidiary to that. If the plaintiff owned the property, she had a right to recover, however good the execution may have been. But if her husband owned it, then she had no right to recover, however worthless the execution may have been. If her husband owned the property, and the constable for any cause obtained it wrongfully from him, then no person but her husband had any right to sue. A wife has never been recognized as the legal guardian of her husband to such an unlimited extent that she may protect his legal rights by herself becoming the plaintiff, and prosecuting the action for him in her own name. We mention this, merely because it seems to be claimed that, if the defendant failed to prove that the execution was founded on a valid judgment, by the introduction in evidence of the record of such judgment, that the plaintiff must then recover, although the property might at the time the execution was levied have belonged to her husband, and not to herself. A vast number of objections were made, and a vast number of exceptions taken by the plaintiff in the court below. And a large number of questions have been raised and discussed in this court; but with the exception of the errors hereinafter mentioned, we think the court below committed no substantial error.

As before stated, the main question in the case in the court below was, who owned the property in controversy? With reference to ownership, the court below instructed the jury as follows:

“The court instructs the jury, that if they believe from the evidence, that the plaintiff in this case was a married woman, and was at the tipie of bringing this suit and for some time prior thereto, then the jury must be satisfied from the evidence, that the property in controversy in this case was' owned by her at the time of her marriage, or is the proceeds or fruit of property so owned, or has come to her by descent, devise or bequest from some person other than her husband, or was the fruit of her earnings from her separate trade or business. If the jury should not be satisfied from the evidence of the existence of any of the foregoing propositions, then you should find for the defendant.”

Now the foregoing instruction is not correct, as an abstract proposition of law; nor is it correct as applied to this case. If the property in controversy was a gift to the plaintiff from any person except her husband, or if it was the proceeds, issues, or profits of any such gift, or if it was the proceeds, issues, or profits of any property which had previously come to her by descent, devise, or bequest, it would certainly be her own separate property, and be exempt from any execution issued against her husband’s property. Indeed, if she had stolen it, and then claimed it as her own, we think she would have been the owner thereof as against all the world except the real owner. According to the plaintiff’s testimony, she has owned property and been buying, selling, and trafficking in property for several years. Some of her property came to her from her father’s estate, some from her own earnings, some from the proceeds, issues, and profits of other property, and the source of some of it was not shown. The property in controversy was purchased, as the plaintiff testifies, with her own money; but where she got the money is not very definitely shown. From anything that appears in the record, the greater portion of it may have been a gift, or the proceeds of a gift from some person other than her husband. But however it may Have come, she testifies positively that the money was hers. "Whether it was hers or not, was a fact for the jury; and if the case had been submitted to the jury on proper instructions, we think the verdict would have been conclusive. But as the foregoing instruction was erroneous, and prejudicial to the rights of the plaintiff, and as the verdict and judgment were against the plaintiff, we think the judgment of the court below must be reversed, and a new trial granted.

There is another question raised in this case; and as the case must be sent back to the court below for a new trial, upon the grounds heretofore mentioned, we think this is as good a time as we shall ever have to present our views upon this other question. The court below also instructed the jury as follows: “ If you should be satisfied that any witness in this case has willfully and corruptly testified falsely to any material fact, then it is your duty to disregard the whole of the testimony of such witness.” Under this instruction the jury evidently disregarded the testimony of the plaintiff. This instruction is fully warranted by the decisions of this court. (See Campbell v. The State, 3 Kas. 488; Hále v. Rawallie, 8 Kas. 136; The State v. Horne, 9 Kas. 131; Russell v. The State, 11 Kas. 322, 323; Gannon v. Stevens, 13 Kas. 461.) And yet we think the instruction is erroneous: Mead v. McGraw, 19 Ohio St. 55, 64; State v.Williams, 2 Jones Law (N. C.) 257, 262; Mercer v. Wright, 3 Wis. 568, 570; Knowles v. The People, 15 Mich. 408; Fisher v. The People, 20 Mich. 147; Lewis v. Hodgdon, 17 Maine, 267, 273; Blanchard v. Pratt, 37 Ill. 243, 246; State v. Stout, 31 Mo. 406; Callahan v. Shaw, 24 Iowa, 441. Whether the jury should disregard the whole of the testimony of a witness in such a case, is a matter resting entirely with them. They are the exclusive judges of the credibility of the witnesses, and the weight of their testimony. They may wholly disregard the testimony of any witness, if from the evidence before them they consider such witness as wholly unworthy of credit. Or they may disregard a portion of the testimony of any witness, and give to every other portion full faith, credit, and consideration. Or they may give to one portion of the testimony of any witness greater weight and credit than they may to some other portion of such testimony. The jury ought to be allowed to weigh every portion of the testimony of 'every witness, and to give to each portion of the testimony just such consideration as it is entitled to, considering all the facts and circumstances of the case. It is within the common experience of all men, that the different portions of the testimony of the same witness may differ vastly in value. A witness may, under great temptations, and in some isolated case, swear falsely, and yet where the temptation is removed, where there is nothing to operate on his hopes and fears, his passions and prejudices, where he has no interest in the matter except to tell the truth, his testimony may be' of great value. And this being so, no inflexible rule of law should be interposed between the witness and the jury, commanding the jury to take all, or to exclude all, of his testimony. So far as the decision made by this court in case of Campbell v. The State, 3 Kas. 488, and the decisions in such other cases as follow that case, are in conflict with the foregoing views, said cases are overruled.

. The judgment of the court below will be reversed, and cause remanded for a new trial.

All the Justices concurring.