Bank of Topeka v. Miller

Johnston, J.

1. Discretionary brings^viiit errors. A preliminary question is raised as to the limits or extent of the review that may be had in cases coming to this court by discretionary certification. No limits are fixed by the statute authorizing certification or by the rule of court pro- J viding the methods of procedure in such cases. On the other hand, the statute in effect provides that when cases are brought to the Su *748 preme Court in that way, it has the same power and authority in reviewing and determining them that it would have had if such cases had been carried to the Supreme Court in the first instance. Gen. Stat. 1897, ch. 84, § 23. The statute plainly contemplates a review of the case de novo, and any exception or point which was available in the Court of Appeals will be available in this court.

2. Motion for uew trial presumed filed in time. The Court of Appeals held in this case, as it has in some others (Dudley v. Barney, 4 Kan. App. 122 , 46 Pac. 178 ), that certain errors occurring during the trial could not be considered because the record did not affirmatively show that the motion for a new trial was filed at the same term at which the ... . _ _ , ,, -, verdict) was rendered, and that unless there is an affirmative statement of that fact in the record it will be presumed for the purpose of upholding the judgment of the court below that the motion was filed at another and different term of court than the one at which the verdict was rendered. We cannot approve of this ruling. It rests upon a mere presumption which can have no force unless it is based on facts, and can never be indulged where the facts disclosed in the case are inconsistent with such presumption, nor where it is overcome by conflicting and stronger presumptions. Where the proceedings appear to be continuous and the various steps iii the case appear to have been taken in regular order and from day to day, or within the time required by law, and there is nothing to indicate the ending of one term and the commencement of another, the natural inference is that everything was done at the same term of court. Railway Co. v. McClure, 58 Kan. 109 , 48 Pac. 556 . If the record showed that a long time had elapsed between the verdict and the filing of a motion for a new trial, or that before it was filed the *749 time had arrived for the commencement of another or different term of court in the same or another county of the district, there might be a basis for the presumption ; but the facts in this case do not warrant the inference or presumption that another term of court had intervened before the motion was filed. The verdict was returned June 24, and the plaintiffs in error filed their motion for a new trial June 27, which was within the statutory time, and the defendants in error, who are insisting that it was not filed at the prosier time, filed their motion for a new trial on the same day. It also appears that other steps were taken in the trial of the cause on the day on which the motions for a new trial were filed. On that day Miller & Go. filed their motion to set aside the general verdict and one of the special findings and asked the court to give them judgment on the remaining special findings. The motion was sustained in part by the court. It thus appears that the case was considered on its merits on the same day on which the motion for a new trial was filed, and nothing in the record or in the case indicates that the case had prior to thát time been continued or reserved to another term of court.

Another consideration is that the court entertained the motion, and the ruling thereon implies a consideration of its merits. If it was not filed in time, it should have been dismissed, but the court denied the motion, and the denial implies a consideration. This inference is sufficient at least to overcome the presumption that the motion was overruled because it was not filed in time.

The action of the trial court in setting aside the general verdict, and in ignoring or setting aside special finding number 23i, which is to the effect that the defendants did not at the time of demand or at any time thereafter have the possession or control of *750 the goods demanded, cannot be sustained. That finding appears to be inconsistent with finding eighteen, and possibly other of the findings which the court deemed to be inconsistent with the general verdict; but while this inconsistency may have afforded grounds for setting aside the general verdict and granting a new trial, it did not warrant the court in overthrowing the general verdict and then rendering judgment on such inconsistent special findings. Finding 23i, which was ignored or set aside by the court, appears harmonious with the general verdict which the jury returned, but the court set aside the general verdict of the jury and substituted its own judgment based on contradictory findings. If the special findings were'contradictory, and some of them in conflict with the general verdict, neither party is entitled to judgment, but it is the duty of the trial court to grant a new trial. Shoemaker v. Railroad Co., 30 Kan. 359 , 2 Pac. 517 ; E. M. N. & S. E. Rly. Co. v. Maxwell, 39 id. 651 , 18 Pac. 819 ; Latshaw v. Moore, 53 id. 234, 36 Pac. 342 . It cannot be successfully contended that the special finding was immaterial.

It appears that Wolfe & Son were merchants in Guthrie and Oklahoma City. They borrowed money from the banks and others, and subsequently, to secure these debts, which were admittedly just and honest, they executed a mortgage, and the mortgagees were given possession of the goods. Miller & Co. who had sold the goods to Wolfe & Son, did not demand the goods until attachments and other proceedings had been begun against Wolfe & Son, and in pursuance of writs which they held the officers had entered the stores and seized their goods. Notwithstanding the seizure, the mortgagees insisted upon the validity of their mortgage and were in the store at Guthrie a part of the time with the officers. Their agents how *751 ever were finally ejected from the building, and the goods were sold under the levies which had been made by the officers. Miller & Co. brought their action against the banks, and other defendants, alleging the transfer of the possession of the goods to the defendants, the demand for the possession, and the refusal of the demand, and also the conversion.

The defendants answered with a general denial and alleging that the mortgage had been taken by them to secure an indebtedness, that the goods were transferred under the mortgage, and that the goods were afterward taken from the defendants under certain judicial proceedings in Oklahoma. Considerable proof was offered as to the possession of the goods when the demand was made, and much of it tended to show that prior to the making of demand the goods had been actually seized and possession taken by the United States marshal and the sheriff under writs which they held, and that at no time thereafter did the mortgagees have any real or actual possession or control of the goods. There is some confusion and conflict in the testimony as to who was actually in possession of the goods at Guthrie from December 19 to December 24, but it appears that Scott, who represented the mortgagees, was in possession of the store at Oklahoma City during that time.

grant new trial, when. The court tried the case throughout on the theory that to constitute a conversion the defendants must have had possession of the goods, and must upon demand have refused to surrender possession o± the same. As further indicating ° the theory upon which the case was tried, the court instructed the jury as follows :

“In order to entitle the plaintiffs to recover in this action, they must prove that at the time they made the demand claimed to have been made in this case of the defendants, that at that time the defendants had *752 the possession or control of the goods in controversy; for if at that time they did not have control or possession of the goods, and did not afterward acquire them, then they would not be liable.”

This must be treated as the law of the case, and in pursuance of this instruction the jury specifically found that the goods in the Guthrie store of the value of $1100 were not in the possession or control of the defendants at or after the time when the first demand was made for them. The finding, therefore, appears to be based on testimony and to be within the rule of law declared by the court, and it is not easy to say that it is immaterial or that the general verdict, which is consistent with it, should be set aside for any other reason than that the findings themselves were contradictory. As the case was in fact tried, the matter of possession was an important issue, and the testimony thereon was submitted to the jury upon an instruction the meaning of which is not in doubt. Involved in that issue and the finding thereon is the claim of $1100, nearly four-fifths of the amount for which judgment was rendered. Under the rule of law declared, the taking of the property by the mortgagees was not tortious, nor the withholding of possession a wrong against the plaintiffs below until there was a demand and a refusal; and there was no conversion then, if the mortgagees had no possession of the property actual or constructive and could do nothing toward giving plaintiffs possession of the same. The property was not concealed, and the plaintiffs had full opportunity to know who was in control of the same, and that it had been seized by the officers of the law on legal process. A demand on those who had control and the power to give possession of the property would have been more reasonable, and probably more effectual, than one upon those from whom *753 the property had been previously and forcibly taken. There is no claim of a conspiracy between the mortgagees and the officers, or that they occupied any other than antagonistic relations, and there is nothing to show that the mortgagees ever afterward came into possession of the property or received any benefit from the disposition of the same.

Our conclusion is that the court could not ignore or set aside an important special finding, and then render judgment on the remaining findings contrary to the general verdict.

The judgment will be reversed and the cause remanded for a new trial.