Kemp v. Seely

Ojetoít, J. This is an action de bonis asjportatis, and the answer a general denial, which is tantamount to the general issue of not guilty. On such an issue, proof that the plaintiff was in possession of the property when taken was grima facie evidence of his title, and the further evidence given of his title was unnecessary; and the ruling of the county court admitting testimony, again'st the objection of the appellant, as to the bona fides of his purchase of the property from his vendor, Lemon, was clearly erroneous, because the respondent had not shown by his pleadings any right to question it. Hutchinson et al. v. Lord, 1 Wis., 286; Rogan v. Perry, 6 Wis., 194; Stanton v. Kirsch, id., 338. The testimony given by the plaintiff and his witnesses was clear and positive that the respondent took the property from the possession of the appellant, and was corroborated substantially by the witnesses of the respondent; and the testimony of the respondent himself, consisting mainly of specific and technical denials, to say the least of it, was very evasive, if not contradictory. The findings of the court were: “ 1. That the defendant did not take, carry away, nor convert, nor in any manner meddle or interfere with, the property of the plaintiff. “2. That no trespass was committed by the defendant upon the property of the plaintiff, as alleged in the plaintiff’s complaint.” This last pretended finding of fact is a mere conclusion of law, which leaves the first finding alone as authority for the judgment. The taking and carrying away of the property is qualified and restricted in this finding by the words “ the property of the plaintiff.” ' What does this finding mean? Does it mean [689] that the defendant did taJce the property from the plaintiff, hut it was not his property, and belonged to some other person? This would seem to be the proper construction and logical inference; for it is a clear negative pregnant, in which the denial of one proposition is the affirmation of anothei’. In this view the court found the issue of title, which is not in the case, against the defendant, and the issue of the taking, which is in the case, in his favor. Or, in another view, the issue of the taking is not found 'positively at all, but only hypothetically and argumentatively, and therefore not found at all as an independent fact. That is to say, it is found that the defendant did not take the property of the plaintiff because it was not the property of the plaintiff. If the issue of title was in the case at all, then it should have been found as a distinct issue. The issue of the taking was clearly in the case, and should have been distinctly and specifically found without qualification. The findings, therefore, if not equivocal and evasive, are too uncertain and defective to warrant the conclusions of law and the judgment. The judgment of the county court is reversed, with costs, and because it appears that there was a misapprehension at least, if not an evasion, of the real issue, both on the trial and in the findings, the cause is remanded to the county court for a new trial therein. By the Court. — So ordered.