Conley v. Dunn

MR. COMMISSIONER POORMAN

prepared the opinion for the court-..

This is an action in claim and delivery. Verdict and judgment for plaintiff, from which judgment, and the order of the court overruling the defendant’s motion for a new trial, this appeal is prosecuted.

The plaintiff, in her complaint, alleges that she “was the owner and entitled to the possession, and was in the possession,” of “six cows branded G U Y on the right ribs and El — 6 on the left hip; five cows branded W A on the right ribs and E — 6 on the left ribs; one cow branded El — -6 on the left ribs hip; all of said cattle of the value of $ktO' each; eight yearling heifers and steers branded E — 6 on the left hip-, of the value of $25 each; six calves branded E — 6 on tbe left liipi; and two unbranded calves, of tbe value of $18 each; one span of work borses, each animal branded V on tbe left shoulder, valued at $120’; one gelding branded N on tbe left shoulder, of tbe value of $40.” Tbe answer filed denies tbe ownership and right of possession of tbe plaintiff, sets up title in a third party, and claims justification for seizing tbe property under tbe terms of a chattel mortgage executed by such third party; tbe defendant being at tbe time sheriff of tbe county where tbe property was seized and tbe action tried. A' trial by jury was bad, and tbe following verdict returned: <cWe, tbe jury in tbe above-enti-tJed action, find tbe issues for tbe plaintiff, for tbe return of five cows branded W. A. on right ribs, and El — 6 on left hip; one cow branded E — 6 on left hip; one calf unbranded; one gelding branded N. on left shoulder; 6 yearlings branded El — 6 on left hip; 6 cows branded G-. 1J. T. on right ribs and E> — 6 on left hip; tbe property described in the complaint; and, in case a delivery cannot be bad, then for' tbe sum of $728.32, tbe value thereof.” Tbe judgment entered contains what purports to be a copy of tbe verdict, and further on contains this statement: “It is ordered adjudged and decreed that tbe defendant return to tbe plaintiff tbe above-entitled property, or, in case said return cannot be made,” etc.

Tbe description of tbe property as given in the complaint differs from that stated in the copy of the verdict found in the record, while the copy of tbe verdict incorporated in tbe judgment contains a description different from that found in either tbe complaint or the former copy of tbe verdict. As, to some of the property these descriptions are tbe same, but as to other items there is a radical difference. In tbe complaint appears this description: “Eive cows branded W A on tbe right ribs and E — 6 on tbe left ribs.” In the verdict tbe description reads, “5 cows branded W. A. on right ribs and El — fi on left hip.” Tbe judgment reads, “5 cows branded El — 6 on right ribs and E! — 6 on left hip.” Tbe pleadings do not contain any reference to cattle branded El — 6 on right ribs and Ei — '6 on left bip. These various descriptions may or may not refer to the same animals. A clerical error may have been committed in making the copies. We cannot indulge in presumptions in those matters. The record before us imports verity, and we are bound thereby. The verdict does not support the judgment, and the complaint does not support either verdict or judgment. Nor this reason the judgment of the district court should be reversed.

It is contended that the verdict m insufficient, that it is not responsive to the issues, that it does not find upon the question of ownership as to the property awarded to plaintiff, that it contains no finding as to either ownership’ or right of possession of the property not awarded to plaintiff, and that it is in the alternative. A? it is not probable that these alleged defects will appear upon another trial, it is not deemed necessary to pass upon them here.

We recommend that the judgment appealed from be reversed.

Pee Cubiam. — For the reasons stated in the foregoing opinion, the judgjment and order appealed from are reversed, and the cause remanded, with directions to the district court to grant the defendant a new trial.