Kansas Pacific Railway Co. v. McBratney

The opinion of the court was delivered by Brewer, J.: The action below was one in ejectment brought by defendant in error against plaintiff in error to [418] recover possession of a section of land in Leavenworth county. -The petition was filed Sept. 14th Í870, and was in the ordinary form, alleging title in plaintiff, and that the defendant unlawfully kept him out of possession. The answer contained two paragraphs. The first was as follows: “This defendant disclaims any and all right, title, interest and possession of the premises, piece, and parcel of land in the petition-mentioned and described.” The second alleged substantially a transfer by defendant of all interest.in the land in 1865 to Shoemaker & Co., a sale by Shoemaker & Co. in 1867 to John P. Usher, and that the latter ever since and still held both possession and title. To this answer plaintiff filed a reply, containing first, a general denial, and second, an allegation of a sale to plaintiff in 1862, and that said Usher had full knowledge of the same prior to 1865.' Upon these pleadings a trial was had, evidence received, findings of fact and conclusions of law made by the court, and judgment rendered. The court found the title in the plaintiff, and the possession in Usher, except as to the road-bed of the railroad company. All this, except the judgment, was irregular and unnecessary. Under the pleadings the plaintiff was entitled- to a judgment for possession; and the only question was, whether the defendant should recover costs on its disclaimer. The pleadings substantially amount to this: “I have the title, and you the possession.” “I have neither title nor possession; Usher has both.” As between plaintiff and defendant in an ejectment suit there was nothing to try. The second paragraph of the answer does not avoid the effect of the disclaimer in the first. It alleges that which is immaterial to this action. If defendant claims neither title nor possession, it makes no difference to it who has. McBratney and Usher may wrestle over title and possession to their hearts’ content, and the defendant is not affected by the result. It follows therefore, that the findings of fact and conclusions of law are superfluous, and that the time of the court was unnecessarily occupied in the hearing of testimony. Both parties are at fault. The plaintiff filed a reply, and [419] offered testimony, as though the issue of title was to to be tried. Defendant objected to the testimony, not on the ground that there was nothing to try, or that the only question to be settled was one of costs, but on the ground that the petition did not state facts sufficient to constitute a cause of action. As the petition follows the code, (§ 595, p. 747, Gen. Stat.,) this objection was properly overruled. Sec. 587 of the code provides that “where defendants disclaim having any title or interest in land or other property the subject-matter of the action, they shall recover their costs, unless for special reasons the court decide otherwise.” We shall not decide the question of costs upon this record, for the proceedings in the district court have been on the assumption that there was an issue to be tried, and we see nothing in the record to justify us in changing the rule laid down in the statute. There may be abundant reasons however for compelling the defendant to pay the costs of this litigation, and the plaintiff should not be cut. off from an opportunity of showing such reasons. The case will therefore be remanded to the district court with instructions to set aside the findings of fact and conclusion of law, and to modify the judgment so as to give to the defendant a judgment for costs, unless within such reasonable time as the court shall fix, special reasons to the contrary shall be shown. The judgment, for possession in favor of the plaintiff will not be disturbed. The costs in this court will be divided. All the Justices concurring.