Ward v. Masterson

The opinion of the court was delivered by Brewer, J.:

This is a proceeding to reverse a judgment of the district court of Crawford county in a replevin suit. The case was tried before a jury, and the following verdict rendered: '

“We the jury find for the plaintiff as to the following described six steers: One red steer branded H F; One red steer, ZB; One red steer, G; One white steer, G; One red steer, 0 0; One red steer, TO; and assess their value at $300. And find his damages $27.12J. And we, the jury, find for the defendant as to the following described steers: One red steer with white belly and face branded O O; One brown steer without brand; two red steers without brand.”

Upon this verdict a simple money-judgment in favor of the plaintiff was rendered for the value of the steers and the damages. That this was improper has been settled by the decision of this court in the case of Hall v. Cohen, 6 Kas., *79 356 . See also cases therein cited. But as there decided it is unnecessary to reverse the judgment and order a new trial. It is sufficient to direct a modification, and that the judgment be entered in the alternative for the delivery of the possession, or in case that cannot be had, for the recovery of the value.

It is objected that the verdict fails to find the value of the steers belonging to defendant, or to assess any damages for taking and withholding them. So far as the record shows no order of delivery was ever issued in this case, nor was the possession of defendant ever disturbed. The record shows simply a petition and answer, and then a trial. If then the steers were never taken from his possession, a failure to find their value has worked no prejudice; nor could any damages be assessed. But the defendant insists that he was entitled to a judgment quieting his title to the four steers, and therefore to a judgment in his favor for part of the costs. We think not. The plaintiff sues for ten head of cattle, and proves title to six. He takes judgment for the six. His failure to obtain judgment for any more, is all the relief the defendant is entitled to. If the possession of defendant had been disturbed the rule might be different. But as this case presents the question, it resembles a suit on two notes in which the plaintiff proves one and fails to prove the other. The judgment is entered in favor of the plaintiff for the amount of the note proved, and there it stops. No judgment is entered in favor of the defendant declaring the other note void, or paid, and carrying part of the costs. If the plaintiff has title to only six, then as between him and defendant, the latter has title to the other four. The rule is general, that where a plaintiff claims affirmative relief, a finding and judgment in his favor as to a portion of his claim is an adjudication against him as to the remainder, and this without any formal statement to that effect in either finding or judgment.

It is further objected that the verdict does not assess the value of each steer separately, and assesses the value of the six at a larger sum than is claimed in the petition. The petition, after describing the ten steers, alleges their value to be forty *80 dollars each. The assessment of the verdict is three hundred dollars for six steers, or at the rate of fifty dollars each. As no amendment of the petition was made or asked, judgment should have been entered for only the amount alleged, forty dollars each, or $240 altogether, and to that extent the judgment must be modified. Our statute nowhere requires either petition, answer or verdict to state the value of the articles in controversy separately. It simply provides that the affidavit for an order of delivery' shall state such values separately as nearly as practicable. Civil code, § 177. If a party desires a finding as to the value of any particular article, doubtless he could obtain it by applying under the provisions of § 286 of the code as amended in 1870. (Laws 1870, p. 173, § 7.) But failing to apply under that section he cannot complain if the jury return the valuation in gross.

The case will be remanded to the district court with instructions to modify the judgment, so that it direct that plaintiff recover the possession of the six steers, or in case a delivery cannot be had, that he then recover the sum of two hundred and forty dollars, the value assessed, together with the damages and costs. The costs in this court will be divided.

All the Justices concurring.