Cit. State Bank of Lawton v. Chattanooga State Bank

It is insisted by the plaintiff in error that the trial court set aside the verdict of the jury on the ground that there was no testimony showing that plaintiff had made demand on the defendant for the possession of the chattels sued for prior to the bringing of said action, and that in that the court erred as a matter of law, and for that reason this case should be reversed, with instruction to vacate the order granting a new trial. In the case of Chipman v. McDonald, 9 Kan. App. 882, 57 P. 252, the court said:

"Upon the pleadings as amended at the trial, the admission of the parties, and the evidence, the plaintiff was entitled to judgment for the possession of the property. The defendant was entitled to judgment for his costs. No demand for the possession of the property was proven. The defendant's possession of the property was by the pleadings conceded to be rightful until default: There was no evidence of a demand or refusal to deliver the possession of the property. The court erred in rendering judgment for the defendant for the possession of the property or its value. He was not entitled to the possession of the property upon the pleadings and evidence."

If the defendant in this case had a mortgage junior to that of the plaintiff on the property, its possession of the same would be lawful until demand by the party holding the superior mortgage thereon. It seems, though, that there is no contention on the part of the defendant that it had a junior mortgage. Its contention is that the property covered by its mortgage was different from that by the mortgage of the plaintiff, and that the property in controversy was not covered by plaintiff's mortgage, but by that of the defendant. Consequently the taking possession of the property in this case, which was after Masoner, the mortgagor, had left the country, and so far as the records discloses without his consent, would seem to be wrongful if it was covered by plaintiff's mortgage, and no demand would be necessary; but, if its possession was either under a subsequent mortgage or by the consent of the mortgagor, its possession would not have been wrongful until demand was made.

Now, the question as to whether or not judgment for the possession of the property in favor of the superior claimant as against one lawfully in possession under an inferior claim, without previous demand, is permissible: In the case ofDeering v. Ford, 13 Smedes M. (Miss) 274, the court said:

"The words of the statute are that: 'Whenever any goods or chattels are wrongfully taken or detained, an action of replevin may be maintained, by any person having the right to immediate possession for the recovery thereof, and for the damages sustained by reason of such wrongful taking and possession.' Hutch. Code, 817. We do not think the demand is essential to the recovery, if the plaintiff is entitled to immediate possession, the detention by the defendant is wrongful. If, however, no demand be made before the institution of the suit, and the original possession of the defendant were lawful, he may tender the property to the plaintiff, and, upon its delivery, by proper plea, discharge the action. The plaintiff might even be adjudged to pay the costs. But if, instead of this course, he denies the right of the plaintiff, and contests the action upon its merits, he cannot, after a verdict against him, defeat the recovery on the ground that there was no demand. The writ is a demand, and defending the suit a refusal."

The rule announced in the foregoing cases is supported by the great weight of authority. See 24 Am. Eng. Ency. of Law (2d Ed.) p. 510, and authorities cited in footnotes 4 and 6; Shinn on Replevin, § 316; Cobbey on Replevin, § 450.

There is some conflict in the evidence in this record, and it is not clear upon what ground the new trial was granted. The granting of a new trial being so much within the discretion of the trial court, this court will not reverse an order of such court granting a new trial, unless error is clearly established in respect to some pure, simple, and unmixed question of law.Brown v. A., T. S. F. Ry. Co., 29 Kan. 186; City of Sedan v.Church, 29 Kan. 190; Sanders v. Wakefield, 41 Kan. 11, 20 P. 518; Willis v. Wyandotte Co., 86 Fed. 872, 30 C. C. A. 445.

The judgment of the lower court is affirmed.

All the Justices concur.