KEY v. LONDON

KEY v. LONDON
1926 OK 476
247 P. 670
119 Okla. 41
Case Number: 16684
Decided: 05/18/1926
Supreme Court of Oklahoma

KEY
v.
LONDON.

Syllabus

¶0 Replevin--Allegations and Proof--Failure of Proof--Demurrer to Evidence.
It is elementary that in replevin actions plaintiff must allege and prove title or right of possession in himself as of the date the action is commenced, as well as the wrongful detention by defendant of the property, and where the proof made upon the trial wholly fails to establish either title or right of possession in plaintiff, a demurrer to the evidence is properly sustained.

Sigler & Jackson, for plaintiff in error.
Hodge & Schenk, for defendant in error.

LOGSDON, C.

¶1 For reversal of this case plaintiff relies upon two propositions:

"First. The judgment is contrary to the law and the evidence.

"Second. The court erred in sustaining the defendant's demurrer to plaintiff's testimony."

¶2 In the briefs of both parties filed in this court, the case is presented upon the theory of principal and agent, plaintiff's contention being that E. C. London, sheriff, is responsible for the acts of his deputies in taking said car from Gus Key without the authority of a warrant. Defendant's contrary contention is that the sheriff is responsible only for such acts of his deputies as are done by virtue of their office.

¶3 In the view taken of the case here it is not necessary to review and analyze the variant authorities upon these questions cited and relied upon by both parties. The case, as shown by the record brought to this court, presents merely a case of failure of proof on the part of plaintiff to sustain the allegations of his petitioner. In plaintiff's petition in the instant action he alleged:

"That the plaintiff is the owner of and entitled to the immediate possession of one Ford coupe, motor No. 9338301, valued at $ 500; that the defendant has possession of same, and that said possession is wrongful, illegal, and unlawful."

¶4 The testimony of Gus Key, on direct examination to sustain these allegations of his petition, is here quoted in full as follows:

"Q. Your name is Gus Key? A. Yes, sir. Q. Do you know this car in controversy? A. Yes, sir. Q. Were you ever charged with stealing a car, or having unlawful possession of a car besides this one? A. No, sir. Q. Is that the only case you ever had that you were ever charged with anything like that? A. Yes, sir. Q. You had possession when the deputy sheriff took it? A. Yes, sir. Q. Where? A. The car was located in my garage. Q. Do you know the reasonable market value of this car at the time? A. Yes, sir. Q. What was it? A. $ 500. Q. Do you know the reasonable rental value per day of a car of this character? A. I could not answer that."