Grossman

This is an action in claim and delivery whereby the plaintiff demands the recovery of a certain crop of potatoes, growing, at the time of the commencement of this action, on approximately six acres of land, situate on Mildred Island, San Joaquin County.

It appears that the plaintiff, upon the issuance of summons in the action, which was commenced on September 12, 1921, claimed delivery of the potatoes to him (sec. 509, Code Civ. Proc.), and, in pursuance of sections 510, 511 and 512 of said code, the same were seized and taken by the sheriff. It was stipulated that the quantity of potatoes taken from the ground by the sheriff under the writ of replevin consisted of 818 sacks, of the aggregate value of $1,249.66, and that of the 818 sacks so taken 370 sacks were sold by the plaintiff.

Plaintiff was at the several times referred to in the pleadings and the evidence a resident of the city of Atlanta, in the state of Georgia. On the fifteenth day of April, 1919, he duly appointed one Harry B. Barker, of the city of Gary, county of Lake, state of Indiana, his attorney in fact, with authority “to buy, lease, sell, mortgage, deed, take, convey in trust or otherwise, and to do all other…

There are two points upon which the application for a rehearing is pressed, to wit: 1. That the evidence fails to show that the defendants entered upon and took possession of the premises in dispute under the written lease from Pavliger to Seid Pak Yuen; 2. That the defendants failed to show, and there is no evidence that does show, that the six acres upon which the potatoes were planted and grown are embraced within the 110 acres of which Pavliger claims the ownership and which is described in the lease from said Pavliger to Seid Pak Yuen.

1. The point first above stated was not made at the trial of the case, but is raised for the first time on this appeal. For that reason we would be justified in refusing to review the point. The case was tried in the court below upon the theory that the defendants went into possession of the premises under the written lease from Pavliger to Seid Pak Yuen. The point should have been raised or made at the trial so that the defendants could have been given an opportunity to show, as in all probability they could have shown, that they took possession under said lease. But we will consider briefly the contention of counsel as to this point. Counsel…