Frank v. Symons , 35 Mont. 56 ( 1907 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The plaintiff brought this action in claim and delivery to recover the possession of a mare and yearling colt of the alleged value of $250, and for damages for the wrongful taking and detention of the same by the defendant. The answer denies the allegations of the complaint, except as to the value of the property, which value is admitted to be $250. The answer also alleges that the defendant was at the time of the commencement of the action the owner and entitled to the possession of the property, and prays for a return of the same, and for damages for its detention by the plaintiff from the time it was taken under the proceedings in this action.

The cause was first tried in a justice of the peace court where judgment in favor of plaintiff was rendered. The defendant appealed to the district court of Silver Bow county, where the cause was tried to the court sitting with a jury. The following verdict was returned: “We, the jury in the above-entitled case, find for the defendant, and we find the valué of the property in controversy to be $100, and that the defendant is entitled to a return thereof from the plaintiff. We also find for the defendant in the sum of $40 damages for the taking and detention of said property by plaintiff.” Counsel for defendant moved the court to strike from the verdict the finding that the value of the property was $100, and to render judgment in favor of the defendant for the return of the property or for the admitted value—$250—in case return could not be made, and for the damages found by the jury for the wrongful detention of the property by the plaintiff. This motion was sustained and judgment entered. From the judgment and an order overruling his motion for a new trial, the plaintiff appeals. There is also an attempted appeal from the order of the court correcting the verdict.

The specifications of error urged in this court are: (1) The order of the court overruling plaintiff’s objection to a question asked the witness Campana on his cross-examination; (2) the giving of instruction No. 1; (3) the giving of instruction No. 3, and the refusal of the court to give plaintiff’s requested instruction No. 11; (4) insufficiency of the evidence to sustain the verdict; and (5) the order of the court correcting the verdict.

1. Constant Campana was a witness called by, and who testified on behalf of, the plaintiff. He testified that he purchased the mare in controversy from Basil Symons, who at the time of the purchase was the husband of this defendant, and that soon thereafter he sold her to the plaintiff,' Frank. In answer to a question propounded by counsel for plaintiff, he testified that he had no interest in the case other than that of a witness. On his cross-examination he was asked this question: “Q. Now, if Mr. Symons does not turn out to be the owner of this mare, you will have to make good to Mr. Frank, will you not?” This question was objected to as calling for a conclusion of the witness. The objection was overruled, and error is predicated upon the ruling of the court.

The interest of a witness in the result of the litigation is always a proper subject of inquiry. (30 Eney. of Law, 2d ed., 1094, and eases cited.) The apparent object of the question propounded to the witness Campana was to show that he appreciated the fact that he might become liable to plaintiff, Frank, if it should be determined that Basil Symons did not have any title to the mare in dispute at the time he sold her to Campana. The ruling of the court was correct.

2. The court gave instruction No. 1, as follows: “The jury is instructed that this is an action in claim and delivery for the possession of the property described in the complaint, and that, before the plaintiff can prevail in this action, it is incumbent upon him to prove, by a preponderance of the evidence, that, at the time of the commencement of the action, he was the owner of said property described in the complaint, or was entitled to the immediate possession thereof, and he must further prove by a preponderance of the evidence that the defendant wrongfully took the property in question.” Contention is made that this instruction does not correctly state the law as to the burden of proof.

According to the allegations of the complaint, the cause of action arose from the wrongful taking of the property by the defendant. The allegations of the complaint are denied in the answer. The affirmative allegations of ownership of defendant did not add anything to the answer, for, under the denials, she could have shown ownership in herself. The burden of proof was, therefore, upon the plaintiff to show, that, at the time of the commencement of the action, he was the owner or entitled to the possession of the property, and that defendant wrongfully took the same from him. (Gallick v. Bordeaux, 31 Mont. 328, 78 Pac. 583.) Instruction No. 1 correctly states the law as to the burden of proof.

3. Instruction No. 3, given by the court, in effect told the jury that, if they believed from the evidence that the mare in question had been given to the defendant, then no subsequent act of the donor could revoke the gift or affect her title, and the verdict should be for the defendant for the possession of the mare “and for any increase or offspring thereof.” Objection is made to that portion of the instruction quoted. The argument advanced in support of the objection is that, as the mare was in foal when plaintiff, Frank, purchased her from Campana and the colt was foaled on Frank’s premises and had been raised by him up to the time the defendant took both mare and colt, the general rule has no application in this instance, and Maize v. Bowman, 93 Ky. 205, 19 S. W. 589, 17 L. R. A. 81, is cited in support of the proposition that the increase of live stock belongs to the owner of the dam at the time. This is the general rule embodied in our Civil Code, section 1170, and in the instruction of the court given above.

Presumably, appellant’s contention is founded upon the theory that, as appellant, Frank, was in actual possession of the dam at the time the colt was foaled, such possession carried with it the presumption of ownership to the mare and therefore to the colt. But this presumption is a disputable one, and the title to the dam was, in fact, the point directly in' issue. The court ' properly instructed the jury that, if in fact the dam belonged to the defendant, then, under the facts disclosed by this record, ownership of the colt, the issue of the mare, was in the defendant as a matter of course. For the same reason the court properly refused the plaintiff’s requested instruction No. 11.

There is nothing in the record to support the theory that the plaintiff Frank was a hirer of the dam, and therefore section 2601 of the Civil Code has no application.

4. It is contended that the evidence is insufficient to sustain the verdict. The evidence tends to show that the mare was taken up as a colt in January, 1901; that at the time she was “a little starved to death colt”; that Basil Symons, who took up the colt, gave her to this defendant; that the colt was kept at their place until the following spring and then moved to the premises of Mrs. Symons’ mother. In June, 1901, Symons moved all of Ms property, except tMs colt and some calves, to another place, and in the fall of 1901 removed the calves, but left this mare in the possession of this defendant at her mother’s ranch until some time in the fall of 1902, when he took the mare, and later sold her to the witness Campana.

Counsel for appellant contends that Basil Symons could not make a valid gift of this mare to Ms wife, for the reason that the property was an estray, and the statute relating to estrays was not complied with in order to vest title in Symons. But the validity of a gift does not depend upon the magnitude of the donor’s title. An estray is essentially lost property, and the finder has a good title thereto as against everyone but the true owner, and in this instance Basil Symons could convey by gift whatever title he had, and his donee would likewise have title superior to that of everyone except the true owner. (Durfee v. Jones, 11 R. I. 588, 23 Am. Rep. 528; Hamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172. See, also, note to Brandon v. Huntsville Bank, 1 Stew. (Ala.) 320, 18 Am. Dec. 48.)

While the evidence is not very clear or convincing upon the question of the gift of this mare by Basil Symons to the defendant, we think it is sufficient to go to the jury, and, the jury having returned a verdict in defendant’s favor, and the district court having considered this question on the motion for a new trial, and having denied that motion, we cannot say that a different result should have been reached, or that the evidence is not sufficient to sustain the verdict returned.

5. The order of the district court correcting the verdict is not an appealable order (Code Civ. Proc., sec. 1722, as amended by an Act of the Sixth Legislative Assembly, Session Laws, 1899, p. 146), but the question may be reviewed on appeal from the judgment (Code Civ. Proc., sec. 1742).

It is said that the district court erred in correcting the verdict. The pleadings admit that the property is of the value of $250. There was, therefore, no issue as to that question, and no occasion for á finding by the jury as to the value of the property. So the portion of the verdict fixing the value at a sum less than the value admitted by the pleadings is surplusage, for, to the extent of the admissions in the pleadings, both the court and the jury are bound by them. (Johnson v. Visher, 96 Cal. 310, 31 Pac. 106.) So far as the verdict goes beyond the issues properly submitted, it is inoperative. (22 Ency. of Pl. & Pr.,. 977, and cases cited.) There seems to be no question of the power of the trial court to strike from the verdict, or disregard, that portion of it which clearly falls within the designation “surplusage.” (22 Ency. of Law, 2d ed., 1026; Fletcher Bros. v. Nelson, 6 N. Dak. 94, 69 N. W. 53; Schweitzer v. Connor, 57 Wis. 177, 14 N. W. 922.) There is nothing decided in Morris v. Burke, 15 Mont. 214, 38 Pac. 1065, in conflict with the views here expressed.

Finding no error in the record, the judgment and order of the district court overruling plaintiff’s motion for a new trial are affirmed. The pretended appeal from the order correcting the verdict is dismissed.

Mr. Chief Justice Brantly and Mr. Justice Smitou concur.