
    (December 3, 1896.)
    KANSTEINER v. CLYNE.
    [46 Pac. 1019.]
    Nonsuit. — Held, that the plaintiff established a prima facie case, and the court erred in granting nonsuit.
    (Syllabus by the court.)
    APPEAL from District Court, Bingham County.
    F. S. Dietrich, for Appellant.
    Even granting defendant’s contention ' that the property in «question was not exempt from execution against the plaintiffs husband, the ruling was still error. Under a claim of ownership the plaintiff had the actual possession of the property. As far as the proof goes, "it tends to show that defendant was, •and is, a naked trespasser who seized and detains the property without a shadow of justification. (Kane v. Desmond, 63 Cal. 464; Bickersiaff v. Doub, 19 Cal. 107.)
    Beeves & Terrell, for Bespondent.
    No authorities cited on the point decided.
   SULLIYAN, J.

This is a suit in replevin, brought to recover the possession of sixteen head of livestock (cattle), or their value, alleged to be $275, in case a recovery of the possession cannot be had, together with damages. The defendant admits the taking, and seeks to justify on the ground that Be, as constable, took said stock under and by virtue of an execution against the property of plaintiff’s husband. The judgment of the justice court was in favor of the defendant, and •an appeal was taken to the district court. The cause was tried in that court to a jury, and, at the close of plaintiff’s evidence, on motion of defendant, a nonsuit was granted, and judgment entered against plaintiff. This appeal is from the judgment. The appellant specifies as error the granting of the motion for nonsuit and the entry of judgment of dismissal. The evidence of plaintiff shows that she was in the actual possession of the livestock mentioned in the complaint, and at least tends to' show that she is the owner thereof, and established a prima facia case. It was error to grant the nonsuit. The judgment, is reversed, and cause remanded for trial. Cost of appeal awarded to appellant.

Morgan, C. J., and Huston, J., concur.  