Lyle v. Barnes

WHITING, J. This is an appeal by the defendant from a judgment in favor of the plaintiff. The action was one in replevin to recover the possession of three two year old heifers which the plaintiff claimed to own and which he alleged were wrongfully detained by the defendant at the time of the commencement of the action. The case was tried by the court with a jury and a verdict returned in favor of the plaintiff. At the close of plaintiff’s evidence the defendant moved for the direction of a verdict in his favor, which motion was denied by the court, and to which ruling the defendant excepted. This motion was renewed at the ■close of all the evidence, and the ruling of the court in denying the former motion for the direction of a verdict is assigned as error. [1] It is contended by the respondent that upon the record in this case none of the matters urged by the appellant are properly here for review for the reason that, “the appeal in 'this case having been taken from the judgment alone, and the order denying the motion for a new trial haying been made after the entry of judgment hefein, and it not having been appealed from, the decision of the court below upon -the question of the sufficiency of the evidence to justify the verdict will be res judicata, as an appeal [654] from the judgment alone does not bring up for review such an order, when made after judgment, and as there are no assignments of error save and except- those relating- to the sufficiency of the evidence to support the verdict,” and the order overruling appellant’s motion for the direction of a verdict. The judgment appealed from was rendered and entered January 5, 1912, and the order denying defendant’s motion for a new trial was made - April 5, 1912, and filed the next day, April 6th. The appeal was taken from the judgment alone. The order denying .the motion for a new trial having been made after the entry of judgment, and not having been appealed from, 'the decision of the court below upon the question of the sufficiency of the evidence to justify the verdict will not be considered ’by this court, as an appeal f-rom the judgment alone does not bring up for review such an order when made after judgment. Gade v. Collins, 8 S. D. 322, 66 N. W. 466; Bourne v. Johnson, 10 S. D. 36, 71 N. W. 140; Parris v. Mahany, 10 S. D. 276, 73 N. W. 97, 66 Am. St. Rep. 715; Stephens v. Faus, 20 S. D. 367, 106 N. W. 56; Aultman, Miller Co. v. Becker, 10 S. D. 58, 71 N. W. 753; Barcus v. Prokop, 135 N. W. 756; Hawkins v. Hubbard, 2 S. D. 631, 51 N. W. 774; Manufacturing Co. v. Galloway, 5 S. D. 205, 58 N. W. 565. [2] However, on an appeal from the judgment when there has been a motion for the direction of a verdict at the close of. plaintiff’s evidence and renewed at the -close of all the evidence this .court will review the evidence for -the purpose of determining whether or not the court erred in denying the motion where the same has been settled by a bill of exceptions or transcript required under the present law, notwithstanding no motion for a new trial has been made in the action and no appeal taken from the order denying a new trial. Dunn v. National Bank of Canton, 11 S. D. 305, 77 N. W. 111; Westphal v. Nelson, 25 S. D. 100, 125 N. W. 640; Grasinger v. Lucas, 24 S. D. 42, 123 N. W. 77. It appears from the record in this case that it contains a transcript of the evidence settled -and certified to by the court under the provisions of chapter 15 of the Laws of 1911. Hence it becomes our duty to examine the evidence for the determination of the question of whether the court committed error or not in denying defendant’s motion.for the direction of a verdict. [655] [3] It seems clear to us that defendant’s motion should have been granted, and that the court should have directed a verdict in his favor. No useful purpose could come from a rehearsal in detail of the evidence herein; but, weighing the evidence most favorably for the plaintiff, it shows the following facts: Plaintiff, on Monday, May 8th, sent his son, a minor child, with a bunch of cattle to place in a pasture some three or four miles from his home. On his why to such pasture the boy went by defendant’s place. The boy and defendant had a conversation relating to the trade of the ■three 'heifers in question for a pony owned by defendant, and such trade was arranged for, and the heifers left with defendant; but the pony was not to 'be delivered that day. On Tuesday morning, not having heard from plaintiff, the defendant placed his brand upon the three heifers. The plaintiff, on Tuesday evening, having learned through the boy and through defendant that there had been some negotiations for trade or exchange, went to the defendant’s place and notified defendant that he did not approve of the proposed trade. ■ Both parties apparently got angry in the conversation that followed, and plaintiff demanded of defendant that he return the heifers to plaintiff’s' farm or deliver them in the pasture to which the boy was taking them at the time that they were left with defendant. Defendant refused to deliver the heifers at either of said places, but, in no manner, made any claim of ownership to the cattle or of any right of possession thereto after he was advised that plaintiff would not ratify the unauthorized acts of his son. The plaintiff did not ask that the cattle be turned over to him, and, In fact made no demand for their possession other than as stated above. In -a day or two after the above conversation, the defendant turned the cattle loose upon the prairie, and, on Friday, the 12th of May, they were seen upon the prairie by "plaintiff, and, when seen by him, were some distance from defendant’s place, were with no other cattle, and in charge of no one. Without taking possession of said cattle when he saw them thus upon the prairie, the plaintiff, upon the next day, 'brought this action in replevin and executed papers in claim and delivery. The sheriff, who executed the order in claim and delivery, found the cattle in question running at large upon the farm of a third person, the brother of defendant. [656] Under the above facts it is clear, that there was neither such demand as would authorize ‘the bringing of an action of replevin against the defendant, nor, at the time of the bringing of said action, was the defendant in either the actual or constructive possession of said cattle, without which possession replevin does not lie. Fortheringham v. Lockhart, (S. D.) 138 N. W. 804. The judgment appealed from is reversed. CORSON, J., dissenting as to the two last propositions. HANEY, J., not sitting-.