Kavanagh v. Phelps

Butler, J. It seems very clear that error cannot be found by us in this case. The action is replevin under the statute of 1863 for goods unlawfully detained. The plea is a general denial. By the provision of section 344, (Gen. Statutes, pago 79,) the plaintiff under that plea, unless there was a disclaimer of all right to the property b3 the defendant, was bound to prove his title to the property or a right of possession. The defendant did not so disclaim or deny the detention, but on the contrary admitted it, and claimed and offered evidence to prove a title in Phelps, derived from Hart & Townsend. The only question then involved in the issue made upon the record was a question either of title or of right of possession in the plaintiff. [115] That question it appears by necessary implication the court decided when it found the issue for the defendants, for it does not appear expressly or by necessary implication that any other question was made or that the court decided any other. That question was one of fact—the pivotal fact of the case; and it is not within our province or our practice to review the decision of it by the court below. We will briefly examine the errors assigned in their order in the light of these principles. The first error assigned by the plaintiff is that the court should have holden tlie instrument set forth in the finding a lease. To this there are two conclusive answers. The first is that it does not appear that the plaintiff made that claim or raised that question in the court below, and therefore it can not be assigned for error here ; and second, it does not appear expressly or by necessary implication that the court did not consider it a lease. There was evidence tending strongly to show that the transaction between Kavanagh & Decker and Hart & Townsend was an absolute sale, derived from the extraordinary character of the instrument, the books of the plaintiffs, and the admissions of Kavanagh, and the court may have held the instrument a lease in legal effect, but to have been executed for' the incidental purpose of protecting the property from the creditors of the vendees, and decided the case upon the ground that the sale was absolute. The second error assigned is that the court should have held a demand before bringing the suit unnecessary. Here again the same answers apply. The question of demand was not necessarily within the issue presented by the record, and it "cannot be presumed that it was raised, or if raised that it was decided adversely to the plaintiff, or at all. The court have found the fact that no demand was made, but it does not appear from that finding that any legal question in relation to it was made by either party or decided on the trial. And as to the third error assigned, there is nothing whatever in the finding to show that the defendant claimed the admissions of Kavanagh to be an estoppel or that the court so held. [116] For these reasons we must advise that • there is no error in the record. And we will add, that, as the case presented no question of law which appeared expressly or by necessary implication to have been raised and decided, it would not have been heard if objected to before the argument commenced, or if its real character had been fully apprehended. In this opinion the other judges concurred.