Opinion
No. 1254
Opinion Filed January 9, 1912.
REPLEVIN — Demand — Refusal. Where, in replevin, defendant contests the action, the writ is a sufficient demand, and defending the suit a refusal.
(Syllabus by the Court.)
Error from Washita County Court; L. R. Shean, Judge.
Action by W. W. Dowdy against C. W. Maddox. Judgment for plaintiff, and defendant brings error. Affirmed.
Burnette Beets, for plaintiff in error.
Smith Wagoner, for defendant in error.
This is an action in replevin for one cow, of the value of $30. There was judgment for plaintiff, and defendant, C. W. Maddox, plaintiff in error, brings the case here.
No demand was made upon defendant for possession, and the cause was tried upon the theory that such was necessary to entitle plaintiff to recover, and depended on whether defendant came rightfully or wrongfully into possession under all the facts and circumstances of the case. In the trial the cow was conceded to be the property of plaintiff, which defendant had taken up without plaintiff's knowledge or consent, but, he claimed, as an estray, believing it to be his own. The question was left to the jury, under proper instructions on this theory, which found the possession wrongful from its inception, and, in effect, that no demand was necessary, and judgment went accordingly. The court did not err in overruling the motion, at the close of the testimony, to direct a verdict for defendant. This for the reason that, assuming he came rightfully into possession, the writ was a sufficient demand, and defending the action a refusal. Citizens' State Bk. v. Chattanooga State Bank, 23 Okla. 767, 101 P. 1118.
We have examined the instructions of the court below which are unexcepted to, and, as they fairly state the law upon the theory on which the cause was tried, the court did not err in refusing to instruct as requested by defendant.
Judgment affirmed.
HAYES and KANE, JJ., concur; DUNN and WILLIAMS, JJ., absent, and not participating.