Creamery Package Manufacturing Co. v. Union Bank

I. The petition of plaintiff does not allege that it was entitled to immediate possession of the property. It does not state the extent, or character, of plaintiff’s interest therein, but leaves the court to ascertain the same from the terms of the order, which, it is said, creates and evidences its interest. It is not alleged in terms that the defendant’s possession of the separator was wrongful. No demand for the possession of the property is alleged to have been made. No issue is tendered as to its value. The defendant’s mortgage is admitted and not avoided, but it is said that Kelly did not own the property and *372hence could not mortgage it. In view of this condition of the petition we are not called upon to consider many questions argued by the appellant. In the pleadings no attack is made upon the validity, or efficacy, of defendant’s mortgage. No issue is made that defendant took its mortgage with notice of plaintiff’s claim upon the property. Nor is the fact that the description of this separator was inserted in the mortgage, after its full execution, pleaded. As we look at the pleadings, no question of notice, or forgery, is in issue. Even if such facts were properly in issue, the evidence is conflicting, and we should not be authorized to set aside the findings of the district court, which stand as the verdict of a jury. It must not be expected that we will enter into the consideration of questions argued which are not in issue. The judgment below was correct, and it is affirmed.