#### Bettie D. Kelly, Appellant, v. Stary M. Hakes, Appellee.

Gen. No. 5,922.

(Not to be reported in full.)

Abstract of the Decision.

1. Replevin, § 124 * —sufficiency of evidence. In replevin to recover possession of a mare and two colts, evidence held sufficient to sustain a finding that each of the parties owned a half interest in the colts.

Appeal from the County Court of Woodford county; the Hon. Arthur C. Fort, Judge, presiding. Heard in this court at the April term, 1914.

Affirmed with finding of facts.

Opinion filed July 31, 1914.

Rehearing denied October 8, 1914.

Statement of the Case.

Beplevin by Bettie D. Kelly against Stary M. Hakes to recover possession of a mare and two colts. Upon a trial without a jury the court found that plaintiff was entitled to possession of the mare and the defendant entitled to the possession of the colts. The court entered judgment on the findings apportioning the costs between plaintiff and defendant and ordered a writ of retorno hdbendo for the "return of the colts. To reverse the judgment, plaintiff appeals, and the defendant assigns cross-errors that the court erred in awarding possession of the mare to plaintiff and in apportioning the costs, and in taxing any costs against defendant.

James L. Hicks, for appellant.

Orman Ridgely, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Me. Presiding Justice Carnes

delivered the opinion of the court.

*2112. Replevin, § 17*—right of action as between tenants in common. A part owner of a chattel cannot maintain replevin therefor as against his co-owner in possession.

3. Replevin, § 163*-—costs. The general rule that the prevailing party is entitled to costs is not applicable in replevin cases where the plaintiff fails to recover all the property replevied.

4. Appeal and error, § 1032*—questions not raised for review. The manner of apportioning costs is not presented for review where the only argument on appeal goes to the right to make an apportionment.