Ross v. Berry

OPINION OF THE COURT. PARKER, J". This is an action of replevin, and heretofore upon motion, the Bill of Exceptions was stricken ■from the record by the Territorial Supreme Court. The inquiry here then is .limited to questions arising on the-pleadings, findings of fact, and conclusions of law. The first assignment questions the action of the Court in refusing to strike out the second amended complaint of appellee. The motion to strike out was founded upon two propositions, viz: (1) that the same was illegally filed because not authorized-by leave of the Court first had and obtained; (2) that there is a variance between the affidavit in replevin and the complaint. -1 In regard to the first proposition it is to be observed that, at the time of the filing of the second amended complaint, there was pending a motion to strike from the ■ files the first amended complaint. The filing of the second amended complaint, under such circumstances,. amounted to a confession of the motion and accomplished all that appellant could accomplish by securing favorable action of the Court on his motion. Under such circumstances, appellant cannot be heard to complain, there-being no injury. The refusal of the Court to strike out the second amended complaint was the equivalent of granting leave, then and there, to file the second amended complaint, or, at least, cures the irregularity • of filing without leave. 31 Cyc. 368. As to the second proposition, it may be said that breach of the three successive complaints filed by the appellant he sued as administrator of the estate of Patrick Berry, Sr. The affidavit i,n replevin is entitled in the-cause, and appellee is styled as administrator in the title, and he subscribed the affidavit as complainant in the cause. But in the body of the affidavit, as the language is “personally appeared Patrick Berry, Jr., who being-duly sworn, declares and says, that he has the legal right to the possession of the following described chattels and property, to-wit:” 2 Counsel say that this was a substantial variance be- ■ tween the complaint and affidavit, and required the Court to strike out the complaint. Even if this amounted to - a variance, we are at a loss to understand how it required. the striking out of the complaint. Counsel cite no authority. If the affidavit was defective, it might furnish the basis for a motion to quash the writ of replevin, but it would certainly neither require nor authorize the striking out of the complaint. The first assignment, therefore, is not sustained. The second assignment challenges the action of the Court in overruling the plea in abatement interposed by appellant to the second amended complaint. The plea raised two propositions: (1) that there was a misnomer of both plaintiff and defendant i,n that they were styled, Patrick Berry, Jr., and Peter Eoss, Jr., whereas their true names were Patrick Berry and Peter Eoss; (2) that there was a variance between the affidavit in replevin and the complaint as above indicated. 3 It is hardly necessary to cite authority that the suffix “Jr.” added to a man’s name is no part of his name, and, with some few exceptions, may be disregarded. 17 A. & E. Ency. Law (2nd ed.) 1036. 29 Cyc. 267. 4 Therefore, the question of variance had been held adversely to appellant on the motion to strike out the second amended complaint. If the question was still open, the plea in abatement was waived by a subsequent answer upon the merits. ' 31 Cyc. 185. Several of the assignments present the proposition that the conclusions of law are not sustained by the ■findings of facts. The Court made, among other findings of fact, the following: “I find that during his lifetime, the decedent, Patrick Berry, made statements, not only that it was his intention to give the property i,n controversy to Peter Eoss, Jr., but also that he had given said property to Peter Eoss, Jr., and these statements are uncontroverted, and the Court finds them to have been made beyond a doubt.” “I also find that the said decedent, Patrick Berry, before leaving for Illinois, told the defendant, Peter Eoss, tliat lie gave him all the horses, farming implements in controversy, and that he was to keep them on the decedent’s place and feed them there.” “I also find that when the deceased, Patrick Berry, left for Illinois, that he left the defendant, Peter Ross, Jr., in charge of said horses and implements, but that lie also left Patrick Berry, Jr., in charge of certain stock, to-wit, cattle, on said place, and that said stock were cared for for some time after the departure of the deceased, indiscriminately fed together.” “I also find that after his return from Illinois, he never exercised any control or dominion over said property, with the exception of mending some harness. I think that is all that is shown in the evidence.” The Court drew the following conclusions of law: “'That the decedent, Patrick Berry, Sr., though intending to make a gift inter vivos, failed to do so, for the reason that the evidence fails to show that said gift was completed by delivery to the defendant, Peter Ross, Jr., of the articles he claims, except those found in the statement of the foregoing findings of fact.” “That the plaintiff in this case, is entitled to judgment as prayed for in his complaint to all those articles, except those mentioned in the findings of fact, and that judgment be entered accordingly.” “I find that the demand was unnecessary, and that the costs in said cause, be paid, one-half by the plaintiff, and one-half by the defendant.” 6 We are unable to see wherein the findings of fact fail to support the conclusions. It appears from the fourth finding of fact, that the grandfather gave the appellant instructions as to where he was to keep the property in question. This negatives the idea of a complete delivery of possession and dominion. The first conclusion of law, so called, is a mixed conclusion of law and fact, and is a finding that delivery was not complete. No further nor more explicit or detailed findings were requested by the appellant, and we are unable to examine the Bill of Exceptions, it having heretofore been stricken out. It therefore becomes impossible to say that delivery was in fact completed by the grandfather to the appellant. It follows, therefore, that the assignments relating to this matter cannot be sustained. 5 The conclusion of the Court that no demand was necessary was correct, the appellant claiming title and right to possession therefrom in himself. 34 Cyc. 1409. Cobbey on Replevin, Secs. 447, 448. All of the remaining assignments relate to matters occurring at the trial and are not reviewable here in the absence of the Bill of Exceptions. There was no error in the judgment of the Court below, and> it will be affirmed, and it is so ordered.