Brandenburger v. Hanner

PLUMMER, J.

This action was brought by a trustee in bankruptcy to recover the assets of a bankrupt estate consisting of a herd of cattle alleged to number eighty-five Ayrshire cows and heifers and one bull. The court found that of the cattle claimed plaintiff was entitled to sixty-five or more, and also that the defendant Edith M. Hanner owned twenty-six animals which were described by name, ear-tag numberings, and body markings. The cause is before us upon a statement on appeal or bill of exceptions by the defendant on her appeal from the judgment of the trial court awarding the plaintiff sixty-five head of cows and heifers, or more, and one bull, and also finding that the defendant was the owner of only twenty-six head of cattle.

The specifications of error are two in number and read as follows:

“I.

“There is no evidence to justify and to support finding number 4 insofar as it finds that the bankrupts were the owners of, or in possession of any greater number of cattle than 65 head of cows and heifers and one bull.

“II.

“There is no evidence to justify or support finding number 10 insofar as it finds that plaintiff has been, and now is damaged in the sum of $345.00, by the wrongful detention of the cattle. ’ ’

Notwithstanding the fact that specification of error number 1 is limited to the lack of testimony to support the words “or more,” appellant has proceeded in her brief to argue that finding number 4 is uncertain and not sufficient to support the judgment. A number of cases are cited to the effect that the findings should be clear and definite, should not be contradictory, must support the judgment, must respond

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to the. material issues, and that there must be a finding upon all the material issues. It would serve no useful purpose to review these cases, for the simple reason that the only valid objection to finding number 4 rests upon the appearance of the words ‘ ‘ or marc, ’ ’ in referring to sixty-five head of cows and heifers, to which the plaintiff was found to be entitled. The respondent has, as we understand the record, consented that the words “or more,” be stricken from the findings, from the conclusions of law, and from the. judgment. The complaint sets forth .in its first count that a certain band of cattle belonging to the bankrupts, consisting of eighty-five head of Ayrshire cows, one heifer and one bull, were in the possession of the said bankrupts and the said Edith M. Hanner. The second coruit sets forth that said cattle are wrongfully withheld from the plaintiff, to the plaintiff’s damage, etc., in an amount alleged. The third count in the complaint alleges that a transfer was made by the said bankrupts to the said Edith M. Hanner, of the cattle mentioned in the complaint as security, within four months of the adjudication of the bankruptcy of the partnership of John W. Hanner and Elmer R. Hanner, and the individual members thereof; that the transfer was void, as being an attempt to give a preference by said bankrupts to the said Edith M. Hanner.