Chittenden, Administrator, v. The King Shoe Company

[No. 5207.] [No. 2818 C. A.] Chittenden, Administrator, v. The King Shoe Company. Appellate Practice — Admission of Evidence — Harmless Error. Even if the trial court erred in admitting in evidence in an action of replevin a letter to show plaintiff’s title to the property, such error is immaterial where there is sufficient uncontradicted testimony in the record, exclusive of the letter, to warrant the court in directing a verdict. — P. 189. Appeal from the District Court of Arapahoe County. Don. Booth M. Malone, Judge. Action by The King Shoe Company against Granville I. Chittenden, administrator of the estate of Elias H. Webb. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Mr. Charles J. Hughes, Jr., and Mr. Gerald Hughes, for appellant. Messrs. Bicksler, Bennett & Nye, for appellee. [MAJORITY — Mr. Justice Maxwell] Mr. Justice Maxwell delivered the opinion of the court: This was replevin by appellee shoe company against Webb, as sheriff, for shoes taken and held under writs of attachment and execution. The defense was, title in one Estes. The issue presented and tried was the* title to the property. At the close of all the testimony, the court directed a verdict in favor of appellee. From a judgment thereon is this appeal. Appellant contends that the court erred in directing a verdict. The abstract of the record presented by appellant undertakes to set forth within six pages thereof plaintiff’s evidence, consisting of over one hundred folios. It is entirely insufficient to enable this court to consider and rule this question upon the abstract of record. Appellee’s evidence consisted solely of a certified copy of a chattel mortgage given by Estes, which covered, with other property, the property in controversy herein. "We have read the testimony contained in the transcript of the record, and find that the evidence introduced and facts proven at the trial fully support the statement contained in appellee’s brief, to the effect that the testimony in this case does not materially differ.from the testimony in the case of King Shoe Company v. Chittenden, 16 Colo. App. 441, wherein the court, speaking by Mr. Justice Gunter, said: “ Title to the goods was not, at any time, in Estes. ’ ’ Such is our conclusion in the case at bar. On the evidence adduced, it was the duty of the court to have directed a verdict. As tending to prove title in the shoe company, over objection of appellant, a letter written by Estes to the shoe company six months 'prior to the commencement of this action, was introduced in evidence. This letter was to the effect that Estes had countermanded the order for the goods two or three months previous to its date. The admission of this letter is assigned as error. It suffices to say that, if error was committed in the reception of the letter, which we do not decide, there is sufficient uncontradicted testimony in the record, exclusive of the letter, to warrant the court in directing a verdict. The judgment will be affirmed. Affirmed. Chief Justice Gabbert and Mr. Justice Gunter concur.-