his cattle to the Stewart brothers, and afterward, on February 20, 1897, Harvey purchased of the Stewart brothers 2,000 head of cattle, which were to consist of those purhased from Nebeker, and other cattle. Thereafter, on April 24, 1897, Harvey made an indorsement on his contract with the Stewart brothers, as follows:

"I turn this contract to C. J. Anderson and M. B. Huffman on receipt of $7,000.

GEORGE HARVEY.

Have received $20 in currency on the above contract.

4-27/97. Received of C. J. Anderson check for $2,000 on Omaha.

4-26. Received check for Huffman and Rollins for $5,000, South Omaha, which consideration I turn this. GEORGE HARVEY."

contract.

It appears that Nebeker was unable to deliver the cattle as rapidly as was expected by the appellants, and thereupon, on June 10, 1897, entered into another contract with B. F. Stewart for the sale of his cattle, in which the cattle were to be counted as total number, 1,600 head, and the title to them was "to remain in Nebeker until

payment in full." This contract, on motion of defendants, was excluded from evidence, but afterward evidence was admitted relating to it. After making this contract, B. F. Stewart informed his brother by letter respecting the transaction, and that he had bought the cattle on range delivery on a basis of 1,600 head." There is evi

"

dence tending to show that B. F. Stewart was acting for himself and brother. After the making of this contract, Nebeker, it appears, informed Harvey, Huffman, and

21 Utah -- 24.

Anderson as to its contents, and that title to the cattle remained in him until they were paid for in full. Thereafter they accepted an order from B. F. Stewart conditionally. The order and acceptance are as follows: "Salt Lake City, July 23, 1897. Messrs. Huffman, Anderson, and Harvey: Please pay to Aquila Nebeker $2,197, balance due on cattle. B. F. Stewart. Order accepted when advance money paid by Harvey settled. Huffman, Anderson, and George Harvey."

It appears in evidence that this order was given to pay the balance due on the 1,600 head of cattle delivered to the Stewarts, and which included the 208 head sued for, and that it has never been paid. The cattle were shipped from the town of Milford to Salt Lake City, to be carried beyond the limits of the State. Nebeker, it appears, having failed to receive payment for the balance due him, intercepted them at Salt Lake City, and demanded the possession of the 208 head of cattle. Upon possession being refused, he brought this suit and obtained possession, but upon the defendants' executing a proper bond, the cattle were re-delivered to them. At the trial a verdict was returned in favor of the plaintiffs for the return of the property, and, if that could not be returned, then for the value thereof, which was fixed at $2,200, with interest. Thereupon judgment was entered for the value, and the defendants appealed.

After stating the facts as above, Bartch, C. J., delivered the opinion of the court.

The

The first question presented is one of jurisdiction. appellants insist that the action was brought in the wrong county, and that therefore the court had no jurisdiction to try the cause. This question was raised for the first time on motion for a new trial, there having occurred no con

The action is re

tention respecting it during the trial. plevin, and it is alleged in the complaint that, on the 12th of November the cattle were wrongfully taken in Salt Lake City and County; that on the same day demand was made for them; and that possession thereof was refused by the defendants and the cattle unlawfully withheld and detained from the plaintiffs. That, at the time the demand was made and suit brought, the cattle were in the city and county of Salt Lake, was substantially admitted in the

answer.

Without referring to the evidence on this point in detail, it may be said that it strongly tends to support the allegations of the pleadings. The fact that the cattle were shipped from Milford, Beaver County, is immaterial, because the complaint states a cause of action in the detinet. It charges that the possession of the cattle was unlawfully withheld after demand was made in Salt Lake County. It is true there is some evidence to the effect that the cattle were taken to the Union Stock Yards, some miles north of Salt Lake City, which are in Davis County, but whether the cattle were taken there before or after demand was made does not distinctly appear. It does, however, clearly appear that they were in Salt Lake City and County before they reached Davis County, assuming as a fact, although not shown by the evidence, that the Union Stock Yards are in Davis County; and there is direct evidence that when the demand was made and the refusal given, the cattle were in Salt Lake City and County. The fact that some process was served in Davis County, as shown by the return of the officer, is immaterial, because, in such a case, the question is not where the property was when process was served, but where it was when demand for its possession was made. The cause of action arose when and where such demand was made and the refusal occurred. This

court so held in Woodward v. Edmunds, 20 Utah, 118, 57 Pac. Rep., 848.

We are of the opinion that the action was properly brought in Salt Lake County.

Nor does the fact that the complaint contains an allegation of "wrongful taking," furnish a sufficient reason for setting aside a verdict for unlawful detention, when such detention was not only the main issue, but was the gravamen of the action, and when the case was tried mainly on that theory, and no objection to the complaint, based on such allegation, was raised by special plea, and the verdict is supported by the evidence. If the complaint was not as definite and certain as it should have been, the remedy was by special plea. It sufficiently states a cause of action in replevin in the detinet, to withstand the objections here made to the verdict and judgment, although it contains an allegation which would be proper and material in replevin in the cepit. Where, as in this case, the judgment comes within the issue, and the facts show a right of recovery in the plaintiff, the mere fact that language is used in the complaint which technically applies to another form of action, will not, under the circumstances of this case, warrant a reversal of the judgment.

In Kuhn v. McAllister, 1 Utah, 273, where objection was made to the form of the action, it was said: "Some of the language used may be that used in trover, but some certainly is not, and it matters little under the Practice Act, whether the language used be that belonging to the form of one action or another, or to no form of action. The material question is, Do the facts stated show the plaintiff entitled to any remedy, legal or equitable. If so, then the court could not say that the complaint did not state facts sufficient to constitute a cause of action."

Black on Judgments, Sec. 141; Pomeroy's Code Reme dies, Sec. 453; Stevens v. Mayor, etc., of city of New York, 84 N. Y., 298; Conaughty v. Nichols, 42 N. Y., 83; Hale v. Omaha Nat. Bank, 49 N. Y., 626; McAllister v. Kuhn, 96 U. S., 87; Johnson v. Meaghr, 14 Utah, 426.

It is also contended that the verdict against defendants Harvey and Stewart is not supported by the evidence. This contention appears to be based on the ground that the cattle were delivered to Huffman and Anderson before suit was commenced. In answer thereto it may be said that there was no exception taken or error assigned, respecting insufficiency of evidence to sustain the verdict and judgment as to any particular defendant. The cause

was tried upon the theory that all or none were liable, and the evidence tends to show that all manifested an interest in the property and were either directly or indirectly in possession thereof. Under the circumstances disclosed by the record, this point can not avail the appellants.

It is further contended, on behalf of the appellants, that the court erred in admitting oral evidence respecting the contract entered into by Nebeker and B. F. Stewart in June, 1897, after, on objection of the defendants, having refused to admit the contract itself in evidence. The trouble here is that the court committed error, harmless as to the appellants, in excluding this contract, for it seems impossible to perceive any sound reason upon which this action of the court was based. The contract referred to a sale of a number of cattle which included those in question herein. The evidence tended to show that the cattle were delivered in pursuance of its terms, and that the parties, on both sides of this controversy, had acted under it. There was a balance due the plaintiffs for the cattle delivered in accordance with its terms, for the pay