Where defendant claims title and a right of possession, he cannot complain that the petition does not allege demand.92 Where the petition shows that defendant came into possession wrongfully, it need not allege demand for a return of the property before the commencement of the action.o

93

§ 1724. Amended and supplemental complaint

It is proper to permit an amendment of a petition which changes the allegation of plaintiffs' ownership in the property from that of absolute ownership to a special ownership, the parties and the property being the same."*

92 Farmers' & Merchants' Bank v. Bank of Glen Elder, 26 P. 680, 46 Kan. 376.

93 A petition in replevin which, after showing that a stock of jewelry was parted with by plaintiff in a trade to defendant W. as a result of his fraud, further stated that, after rescission and demand for its return, W. sold the jewelry to E. for the consideration only of a credit on a promissory note held by W, against E., and delivered the jewelry to E., "who now claims said jew-. elry or an interest therein," sufficiently shows that E. came wrongfully into the possession of the property, so that a demand for its return was unnecessary before commencement of a suit. Wails v. Farrington, 116 P. 428, 27 Okl. 754, 35 L. R. A. (N. S.) 1174.

94 Swope v. Burnham, 52 P. 924, 6 Okl. 736.

It is within the reasonable discretion of the court to allow a petition in replevin, based upon the claim of general ownership, to be amended by setting up a claim of special ownership under a pledge to secure the payment of a debt. Gray v. Doty, 94 P. 1008, 77 Kan. 446.

It is not error to allow an amendment in replevin, changing allegations of absolute ownership to allegations of special ownership based on notes and chattel mortgages, and by adding a count for conversion and praying for the value if delivery cannot be had. Continental Gin Co. v. Pannell, 61 Okl. 102, ́ 160 P. 598.

Where the affidavit in replevin alleged generally a specific ownership and interest in, and that plaintiff was entitled to immediate possession of, certain chattels, and the petition set up a special ownership in the chattels, specifically pleading such ownership by virtue of two mortgages, and described a portion of the indebtedness secured by such mortgages, it was error to strike from the files an amended petition which did not change the chattels sought to be recovered nor the parties, but, in stating the special ownership and wrongful detention, pleaded two additional mortgages held by plaintiff at the beginning of the action covering the same property, the indebtedness secured thereby then due, and default as to payment and demand for possession having been made at such time, under Wilson's Rev. & Ann. St. 1903, § 4343, providing that the court may amend any pleading by inserting other material allegations, where such amendment does not substantially change the claim. Robinson & Co. v. Stiner, 109 P. 238, 26 Okl. 272.

HON.PL.& PRAC.-102

(1617)

96

95

The petition may be amended as to the value of the property, "5 General damages such as necessarily result from the unlawful retention of property need not be specifically pleaded, and general allegations of damages authorize recovery of such damages as are the natural consequence of the wrongful acts, but damages for an injury to the property while in defendant's possession must be specially pleaded."7

§ 1725. Amendment of affidavit

98

The original affidavit in replevin may be amended so as to state sufficiently what is already stated therein indefinitely. It may be amended after issuance and execution of the order of delivery." Irregularities and defects in the affidavit in an action in replevin, sufficient to give ground for dismissal of an action, if timely objections had been made, will be waived, and the court will obtain jurisdiction to try the case, if the defendant answer to the merits without raising objection thereto.1

Where, after the granting of a new trial, a party asks leave of court to amend the affidavit and leave is granted by the court on condition that the same be made within 10 days, and that the plaintiff pay all costs in the action to date within 10 days, the conditions only apply to the right to amend, and if the party fails to comply with the conditions, he only forfeits his right to amend; and hence it is error for the court to make an order dismissing

95 It was not error to permit a plaintiff in replevin to so amend her petition as to increase the value of the articles above that alleged in her replevin 'affidavit. Chandler v. Parker, 70 P. 368, 65 Kan. 860.

A plaintiff in replevin, who, in ignorance of the real value of property sought to be recovered, alleged its value at an excessive sum, is entitled, upon motion therefor, to amend his petition in such respect, notwithstanding he failed to amend when (as before answer) he could have done so without leave, and also failed to apply for leave as early as he might have done, if the amendment, when applied for, can be made without prejudice to the rights of the defendant, and if a denial of leave to make it will increase the liability of the plaintiff to the extent of $1,000, or a fifth of the value of the property in dispute. McManus v. Walters, 61 P. 686, 62 Kan. 128.

96 Jackson v. Glaze, 41 P. 79, 3 Okl. 143.

97 Hunt v. Cohen (Okl.) 179 P. 1.

98 Meyer v. Lane, 20 P. 258, 40 Kan, 491.

99 Washington Nat. Bank v. Rooney, 150 P. 555, 96 Kan. 133.

1 Hutchings v. Cobble, 30 Okl. 158, 120 P. 1013.

the case for a failure to comply with the conditions attached to the leave to amend.2

§ 1726. Issues, proof, and variance-Matters to be proved

When the plaintiff claims the personal property in controversy as sole owner, he must stand or fall on that claim, and cannot recover by showing his right to a lien; but an allegation of absolute ownership of the property has been held sustained by evidence which shows the plaintiff to be a chattel mortgagee in possession.' Where the petition in action to recover specific personal property from a constable, alleges that after final judgment for defendant, dissolving an attachment, plaintiff served notice of intention to appeal but never perfected the appeal, and where defendant filed a general denial, whether such appeal was perfected was a material issue the burden of establishing which was on plaintiff."

§ 1727.

Variance

That replevin was brought against an officer in his individual name, and the evidence showed that he acted in an official capacity under process in seizing the property in controversy, does not constitute a fatal variance."

Where a petition alleges that the plaintiff is entitled to possession by reason of a special interest evidenced by notes and a chattel mortgage, but the proof shows that, if entitled to possession at all, it is by reason of a certain other agreement, there is not a fatal variance."

Where the petition prayed for nine mules, the affidavit, order. and redelivery bond, which described only five mules, were no part of the pleading, and the cause was properly tried on the averments contained in the petition.8

In an action to recover a certificate of corporate stock pledged with defendant by one who obtained the certificate from the plaintiff's husband, her agent, a variance between an averment that the pledgor was a trustee and proof that he wrongfully obtained pos

2 Bayless v. McFarland, 63 P. 859, 10 Okl. 747.

3 Parry Mfg. Co. v. Myton, 54 P. 291, 8 Kan. App. 533.

4 Falk v. Decou, 61 P. 760, 8 Kan. App. 765.

Thompson v. Grove (Okl.) 180 P. 553.

6 Mann v. Ridenhour, 46 Okl. 565, 149 P. 124.

7 J. E. McMillan Hardware Co. v. Ross, 104 P. 343, 24 Okl. 696. King v. King, 141 P. 788, 42 Okl. 405.

session of the stock was immaterial. Under a plea of special ownership, evidence that the intervener is the absolute owner is inad missible.10

§ 1728. Burden of proof

The burden is on the plaintiff to establish his right to recover by a preponderance of the evidence.11 A plaintiff having a special interest in the property replevined cannot recover the usable value thereof without proof that the special interest includes the right to the use.12

Where, in replevin against a constable to recover possession of property held by him as such, he attempted to justify by virtue of levies made under an execution in his hands, he must show that the execution was issued by competent authority upon a valid and unsatisfied judgment.18

Where a mortgagee seeks to recover possession of property under a chattel mortgage given to secure the payment of notes, and the mortgagor admits the execution of the notes and mortgage, and defends only upon the grounds that the mortgagee has no right to maintain the action and that the property is exempt, the burden of proving such issues is upon the mortgagor.1

In replevin between two mortgagees, where the plaintiff proves all the facts necessary to entitle it to recover, unless the defendant. has a prior lien, the defendant must not only establish that its mortgage is first in date of execution, but must show, where such fact is denied by the plaintiff, that the property is the same property included in the defendant's mortgage.15

Where both parties in replevin claim under the same personplaintiff by bills of sale, and the defendant by chattel mortgagesthe burden is on the defendant to show that he had authority, outside the mortgage, to apply the proceeds of the mortgaged property on notes not secured by the mortgage.16

9 State Nat. Bank v. Scales, 60 Okl. 225, 159 P. 925.

10 International Bank of Bristow v. Bowser, 125 P. 458, 33 Okl. 316.

11 Kerfoot v. State Bank of Waterloo, 77 P. 46, 14 Okl. 104.

12 Francis v. Guaranty State Bank of Texola, 44 Okl. 446, 145 P. 324.

13 Williams v. Foreman (Okl.) 166 P. 700.

14 Colean Mfg. Co. v. Johnson, 109 P. 403, 82 Kan. 655, 20 Ann. Cas. 296.

15 State Bank of Waterloo, Ill., v. City National Bank of Kansas City, Mo., 89 P. 206, 18 Okl. 10.

16 First Nat. Bank v. Parkhurst, 37 P. 1001, 54 Kan. 155.

In replevin by the payee for possession of a time certificate of deposit, where the plaintiff proves to the jury's satisfaction that possession was obtained through fraud and without consideration, the burden shifts to the party claiming as innocent holder in due course for value to show that he is such holder.1

To sustain a judgment in favor of an officer who claims the right of possession by virtue of a seizure under a judicial process, the evidence should show his official character, and the proceedings and process under which he acted and claims possession.18

§ 1729. Defenses under answer-General denial

An answer by the defendant disclaiming any right, title, or interest in the property in controversy presents no issue upon the allegations of the petition, since the gist of the action is not the title to the property, but its wrongful detention.19

Where facts have arisen since the commencement of the action which would vary the relief to which the plaintiff is entitled, such facts may be alleged in a supplemental answer.20

Under a general denial the defendant may make any defense that will defeat the plaintiff's claim,21 and therefore a motion by the

17 Thompson v. Clark (Okl.) 178 P. 655.

18 Graham v. Shaw, 17 P. 332, 38 Kan. 734; Arn v. Parker, 18 P. 201, 39 Kan. 338.

19 Zeisler v. Bingman, 60 P. 657, 9 Kan. App. 447.

20 Haltom v. Nichols & Shepard Co., 64 Okl. 184, 166 P. 745.

Where, in replevin, the falsity of the affidavit is relied on by defendant to recover the property taken on a writ based thereon, the issue cannot be raised on motion, but by answer. Perryman v. Brown, 105 P. 680, 25 Okl. 138.

21 Broyles v. McInteer, 120 P. 283, 29 Okl. 767; De Hart Oil Co. v. Smith, 140 P. 1154, 42 Okl. 201; Williams v. Gibson Bros., 60 Okl. 147, 159 P. 649; French v. Brown (Okl.) 174 P. 748; Thompson v. Grove (Okl.) 180 P. 553; Payne v. McCormick Harvesting Mach. Co., 66 P. 287, 11 Okl. 318; Dewey v. Bobbitt, 100 P. 77, 79 Kan. 505; Shadduck v. Stotts, 59 P. 39, 9 Kan. App. 776, judgment affirmed 61 P. 1131, 62 Kan. 866.

Where plaintiff alleges ownership generally, defendant need not allege that the bill of sale under which plaintiff claims is only a mortgage in order to introduce evidence to that effect. Francis v. Guaranty State Bank of Texola, 44 Okl. 446, 145 P. 324.

Where, in replevin, the answer contains a general denial, the title of plaintiff is put in issue, and the answer states a defense. Bancroft-Whitney Co. V. Mayfield, 129 P. 702, 36 Okl. 535.

Where, in replevin, defendant's answer was a general denial, proof may be made thereunder that at the commencement of the action defendant had