Long-Bell Lumber Co. v. Webb ( 1898 )

The opinion of the court was delivered by

Milton, J. :

Many of the questions raised by counsel for plaintiff in error in his brief were not presented in the trial court. The petition is said to be fatally defective by reason of the omission of an allegation that the plaintiff was entitled to the immediate possession of. the property. We must hold, as against the objection, now made for-the first time,'that the petition does allege plaintiff’s right to immediate possession ; for the mortgage, which is made a part of the petition, contains a clause under which the plaintiff could havb taken possession of the property at any time after the maturity of the note secured by the mortgage. The same is true of the answers, in the nature of cross petitions, filed by the other mortgagees. But we find-that several of these answers are wanting in an allegation that the debt secured by the chattel mortgage described therein is unpaid. This omission might be regarded as a fatal defect in each of these pleadings except for the fact that the.proof showed that Mears had paid no part of the debts in question. The same is true in respect to the matter of possession by Mears, as agent for the mortgagees. Evidence tending to prove such possession was introduced .and received without objection. While it was clearly irrelevant, as the pleadings contain no allegation of that character,it is now too late to complain of its admission. The instructions of the trial court presented the law covering every phase of the controversy with unusual clearness. They referred specifically to the matters we have just considered. The only exception taken to any part of them by plaintiffs in error was to one paragraph concerning the question whether the lumber company relied on the lease or the execution as authorizing the seizure and sale of the goods. It thus appears that the issues before the jury were precisely the same as if the pleadings had been regular and complete.

As to the instruction to which exception was taken by plaintiffs in error, we observe that it was subsequently in substance repeated, and no exception was noted. Thus the error, if any, seems to have been waived. The question of the good faith of the parties with respect to the chattel'mortgages, and all other questions upon the facts, were fairly submitted to the jury. Its verdict has received the approval of the trial court. We perceive a number of irregularities and defects in the proceedings, but practically all of them have been waived by the plaintiffs in error. Those not so waived are not of sufficient importance to cause a reversal of the judgment, or even to require special mention here. The judgment of the district court is affirmed.