Anderson v. Thomas

2 Indian Terr. 79 | Ct. App. Ind. Terr. | 1898

Springer, C. J.

Counsel for appellants submit four assignments of error in this case. The first and second assignments are on account of overruling the demurrer to the complaint and the motion to strike out the name of the plaintiff Wilemdn. This court will not pass npon these assignments of error, for the reason that no exceptions were taken at the time the court passed on the demurrer and motion, and it is too late to assign such errors for the first time in this court.

The third assignment is as follows: “(3) The court erred in refusing to allow defendants to prove that the plaintiff Thomas had conveyed all his right, title, and interest in and to the Jim Hughes lease.” In the certificate of the trial judge to the bill of exceptions in this case is the following statement in reference to the proposed testimony: “On the trial of the case the defendant undertook to prove that the plaintiff Thomas had conveyed all his right and title to and interest in the Jim Hughes lease to some lawyers in Paris. Objection was made to this testimony because it was no portion oí the land in controversy, and the court sustained the objection. ” Counsel for appellants, replying to this statement by the trial judge, contend that it was error to exclude the evidence on that ground; that the effect of the ruling was to take away from the jury the sole issue in the case, and decide it by the court. But the testimony was immaterial upon any theory of the defense, for, if the jury should find that the land in controversy was a part of the Ben Hughes lease, it would be no defense to have shown that the plaintiff had disposed of this interest in the Jim Hughes lease; and if the. jury should have found that the land in controversy was a part of the Jim Hughes lease, such defense would have been sufficient, for the plaintiff laid no claim to any part of the land in the Jim Hughes lease. The burden of proof was on defendant to establish, by a preponderance of the evidence, that fact; and, if established, his defense was complete. It would have been wholly immaterial whether the plaintiff had sold his interest in the Jim Hughes land or not, for he laid no claim to it. It was not error to overrule the motion for a new trial, as no reversible error is found in the record of the proceedings of the court. The judgment of the court is affirmed.

Clayton and Townsend, J. J., concur.