Ritchie v. Schenck

Error — must be shoion, not presumed. In the absence of any showing to the contrary, it will be presumed that the instructions of the court to the jury were proper. Where no error is shown to have been committed by the court below, the judgment of that court must be affirmed.

Error from Shawnee District Court. Replevin for seven head of cattle, brought by Ritchie. The evidence was not sent up to this court. The district court instructed the jury as follows: “ The plaintiff alleges that he is the owner of certain personal property, namely, seven steers, described in the petition, and that he is entitled to the immediate possession thereof; that the defendant, Schenck, unlawfully detained the same from the possession of the plaintiff’; and he brings this action to recover possession of said property. These allegations are denied by defendant in his answer. But it is admitted in open court, by both parties — 1st, That at and before the commencement of this suit the cattle in controversy were in the possession of Schenck, the defendant; 2d, That while the cattle were thus in possession of defendant, and • before the commencement of this suit, the plaintiff Ritchie demanded the cattle, and was refused by defendant; 3d, That the value of the cattle is as alleged, $338.50; 4th, That at the commencement of this action plaintiff Ritchie replevied said cattle from defendant. “ The question then for you to decide is simply this— whether at the commencement of this action Ritchie was owner of the cattle, or Schenck. You are the exclusive judges of the testimony; of what it proves, and what it disproves; of its weight, and the credibility of the witnesses. “ The defendant Schenck being in possession at the time of the replevying, and claiming ownership, is entitled to the benefit of the presumption of law that he is the owner; and the burden of proof is on the plaintiff to establish by a preponderance of testimony, that he is the owner, before he can recover.” The jury returned a verdict in favor of the defendant, as follows: “We the jury find that at the commencemet of this action the defendant had the. right of property in, and the right of possession to, the personal property in the plaintiff’s petition described; that the value of said property was $ 338.50; and we assess the defendant’s damage for the taking and holding of the same by plaintiff at $250.” The defendant waived the finding for damages, and judgment in his favor was then entered on the verdict. Motion for a new trial overruled, and plaintiff' brings the case here by petition in error. No briefs filed.