
    W. H. Brown, as Sheriff of Jefferson County, Kansas, et al., v. Marion S. Morris.
    No. 110.
    
      Replevin — Erroneous Instruction. In an action of replevin, where there is an entire absence of any evidence as to the amount of damages sustained by the plaintiff by reason of the unlawful detention of the property in controversy, it is error to instruct the jury that in determining that question they may apply the common knowledge possessed by them as to the value of its use during the period covered by its unlawful detention.
    Memorandum. — Error from Jefferson district court; Robert Crozier, judge. Action in replevin by Marion S. Morris against W. H. Brown, as sheriff of Jefferson county, and others. Judgment for plaintiff. Defendants 'bring the case to this court.
    Modified.
    The opinion herein, filed June 5, 1896, states the material facts.
    
      Wm. F. Cilluly, for plaintiffs in error.
    
      Morse & Morse, for defendant in error.
   The opinion of the court was delivered by

Clark, J. :

Marion S. Morris brought this action in the district court of Jefferson county against W. H. Brown, as sheriff of Said county, and The Moline Plow Company. The petition alleged that the plaintiff was the owner and entitled to the immediate possession of three certain horses which the defendant had wrongfully and unlawfully levied upon and sold as the property of one H. Jacobs, by virtue of a certain execution issued upon a judgment rendered in an action wherein the Moline Plow Company was plaintiff and the said Jacobs was defendant; that the defendants had sold, used and converted said property to their own use and benefit, to the damage of the plaintiff in the sum of $700 ; and he demanded judgment for the value of the property, which he alleged to be $425, and for damages in the sum of $225, which he claimed to have sustained by reason of said wrongful and unlawful seizure, detention, and conversion. The sheriff answered, first, by general denial, and, second, by admitting the levy and sale under the execution, and alleging that the plaintiff and the said Jacobs had “fraudulently conspired together to wrongfully and unlawfully defeat the collection from said Jacobs of the amount of the judgment against him in the action against him in which the execution therein mentioned was issued for its collection, and in furtherance of said illegal and unlawful design on their part have commenced and are now prosecuting this action, to the damage of defendants in the sum of $200,” for which he prayed judgment. The jury returned the following verdict:

“ "We, the jury impaneled and sworn in the above-entitled action, do upon our oaths find the right of property and right of possession to be in the plaintiff, the value thereof to be $200, and assess the damages for the detention thereof at $60.”
A motion for a new trial was overruled, and a judgment was rendered that
“Said defendant W. H. Brown return forthwith to said plaintiff, M. S. Morris, the personal property described in plaintiff’s petition, to wit: 1 sorrel horse, 4 years old, 1S£ hands high; 1 black horse, 8 years old, about 16 hands high; 1 bay horse, about 15£ hands high, 9 years old, in as good and marketable condition as when seized and taken by said plaintiff from the said defendants on the 4th day of December, 1891, together with $60, as damage for the detention of the above-described personal property, and costs of this action to be taxed at $-. It is further ordered and adjudged by the court, that if said property is not returned as aforesaid, the plaintiff should have and recover of and from the said defendant W. H. Brown the sum of $260, together with the costs of this action as aforesaid; hereof let execution issue.” .

There is nothing in the.record to show any service upon or appearance by the defendant the Moline Plow Company, yet-it is here with the sheriff complaining of the judgment rendered against Brown.

The plaintiffs in error base their right to a reversal of the judgment upon the rulings of the court in the admission of evidence, and the instruction to the jury, and also claim that the damages allowed were excessive. We have been unable to discover any prejudicial error committed by the court in- its rulings upon the admission of evidence. The plaintiff established a clear title to the property and his right to its possession. The evidence as to the value of the property was very conflicting, the plaintiff placing it at $425, while one of the witnesses for the defendants estimated its value at not exceeding $100. It was the province of the jury to determine from the conflicting evidence the value of the property' in controversy. They did so, and their finding upon this question was warranted by the evidence.

The court instructed the jury :

•"‘This suit was instituted by Mr. Morris to recover possession of these horses, but failing to get the horses upon a writ of replevin, it becomes an immaterial matter, so far as the jury is concerned, whether it is an action of replevin, or something else, because you have to find the same findings of fact either way. The court. will render a judgment on the finding you make. . Mr. Morris'in this suit claims that he was the owner of that property; that is the main issue now. Who was the owner of that property at the time of that levy? Was it Mr. Morris or Mr. Jacobs? ... If it was the property of Jacobs, that is the end of the case, and you must find for the defendant; but if you should find that it is the property of Mr. Morris, then the next finding for you to make would be, What was the value of that property at the time it was taken ? . . . It is for you ^o find, if it belonged to the plaintiff in the first place, what the value of it was, and also find in addition to that, what was the value of the use of it; in other words, What was the damage sustained by this man, if any, by reason of being deprived of the use of his property, from the time it was taken away from him, if taken wrongfully, -up to the present time? Now, I don’t believe there was any testimony in this case to show what the value of the use of such animals was down .to the present time, but the jury may apply what common knowledge they have, if any, as to the value of the use of such animals to this time, and render judgment then for the damage on account of their detention.”

The latter portion of this instruction is the one complained of by the plaintiffs in error. As we construe the pleadings, this is an action for conversion of personal property, and if so, then we think the measure of damage would be the interest on the value of the property from the date of its conversion to the date of the verdict. However, the cause of action as set forth in the pleadings seems to have been treated by the parties and the trial court as one in replevin. The case was evidently tried upon that theory, and we will, therefore, adopt that construction of the pleadings. As so construed, the measure of damages in this case was correctly stated by the court. But it was certainly prejudicial error to instruct the jury that 'they might determine the value of the use of the property by the common knowledge possessed by them with reference thereto. There is an entire absence from the record of any evidence tending to show that the plaintiff sustained any damage by reason of the unlawful detention of his property by the defendants ; hence, no instruction should have been given upon that point. The instruction that the jury might assess damages, although none were proven to have been sustained, was clearly erroneous, and as the finding as to the value of the use of the property has no support in the evidence, the court erred in including in the judgment the damages as assessed by the jury for the detention of the property ; and because of such error the case will be remanded to the district court of Jefferson county, with directions to modify the judgment by reducing the amount thereof to $200, the value of the property as found by the jury.

The judgment as so modified will be affirmed.

All the Judges concurring.  