Opinion
No. 3695
Opinion Filed May 12, 1914. Rehearing Denied August 25, 1914.
1. APPEAL AND ERROR — Case-Made — Exceptions. A mere recital in a case-made of exceptions to "each and all" of the several instructions given is insufficient.
2. SAME — Record — Review of Evidence. Where case-made does not contain any averment, by way of recital, that it contains all the evidence and, notwithstanding attention is called to such defect in brief long on file, there has been no request for leave to amend, no error which requires an examination of the evidence will be considered here.
3. PLEADING — Bill of Particulars — Sufficiency. A bill of particulars in replevin, which alleges and prays for the specific property or, if that cannot be had, for its value, and also prays for "damages," is sufficient, under section 4063, St. Okla. 1893 (section 4807, Rev. Laws 1910), to warrant recovery of "damages for the detention," in the absence of objection at or before the trial.
4. REPLEVIN — Damages for Detention. Where personal property has a distinct "usable value," the same may be recovered as "damages for the detention" under section 4063, St. Okla. 1893 (section 4807, Rev. Laws 1910), in an action of replevin.
(Syllabus by Thacker, C.)
Error from County Court, Okfuskee County; J. B. Patterson, Judge.
Action by M. H. Castleberry against the Weleetka Light Water Company. Judgment for plaintiff, and defendant brings error. Affirmed.
E. G. Wilson ( F. W. Casner, of counsel), for plaintiff in error.
Martin L. Frerichs, for defendant in error.
Plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in the trial court.
Plaintiff brought an action in replevin against defendant in a justice of the peace's court for the property hereinafter specified, recovering judgment therefor on February 10, 1910; and on September 20, 1911, in the county court, on appeal by defendant, again recovered judgment for the property, with damages. The judgment in the county court was for one ice wagon, valued at $100; one ice wagon, valued at $20; two ponies, valued at $80; with proviso that, "if said property or any part thereof cannot be had," plaintiff might recover its said value, and, also, $200 as "damages as found by the jury."
Not only are there no exceptions to any instruction which should be considered, under the rule announced in Eisminger v. Beman, 32 Okla. 818, 124 P. 289, which we have just followed in Weleetka Light Water Co. v. Northrop, ante, 140 P. 1140, that a mere recital in the case-made of exceptions to "each and all" of the several instructions given is insufficient; but the case-made does not contain any averment by way of recital that it contains all the evidence, nor has defendant asked leave to supply the same by amendment (although this defect was pointed out in plaintiff's brief filed herein July 20, 1912); and, in such cases, the rule is that only errors urged which appear from an examination of the process, pleadings, reports, orders, verdict, and judgment, constituting the "record proper," and which do not require an examination of the evidence, will be considered in this court.
Plaintiff's bill of particulars, without alleging the value of the use of the property of which he was deprived by its detention, prays "for the return of said property, for his damages, and for costs of this suit," and it is in effect urged that damages for its detention could not be given in the absence of a specific allegation of such value or of the amount of damages claimed in the bill of particulars; but, in the absence of any form of objection before or at the time of trial, we think the allegation sufficient under section 4063, St. Okla. 1893 (section 4807, Rev. Laws 1910) authorizing "damages for the detention." And see Kansas Pac. Ry. Co. v. Taylor, 17 Kan. 566.
It may not be amiss to observe here that no question as to the jurisdiction of the county court of the amount there claimed and recovered, predicated upon the appellate character of its cognizance of the case, was raised either in that court or here; and, the county court having then both original and appellate jurisdiction of the subject-matter of the action and of the parties, the rule announced in Casner v. Streit, ante, 142 P. 1004, to the effect that, notwithstanding the county court ordinarily and by virtue of the appeal to it has only the jurisdiction of a justice of the peace in such cases, jurisdiction of an amount in excess thereof but within the maximum limit of its original jurisdiction may be given by consent and waiver, applies. Also see 24 Cyc. 643, and Groenmiller v. Kaub, 67 Kan. 844, 73 P. 100.
It is also urged that, in replevin, "usable value," in addition to a return of the property, or, if that cannot be had, its actual value, is not recoverable; but it appears to be well settled that where the property has a distinct "usable value" the same may be recovered as damages for its detention. Thomas v. First State Bank of Tecumseh, 32 Okla. 115, 121 P. 272, Ann. Cas. 1914A, 376, and First State Bank of Mannsville v. Howell et al., 41 Okla. 216, 137 P. 657.
It is further complained that the judgment, which in the respect quoted in part above is somewhat inaptly worded, allows recovery for the value of all of the property if any item thereof cannot be returned; but we do not think it is susceptible of such construction, and to construe it, in the light of the law, to mean that only the value of such items as cannot be had in return is recoverable.
For the reasons stated, the judgment should be affirmed.
By the Court: It is so ordered.