132 Ark. 166 | Ark. | 1918
(after stating the facts). (1) As to the replevin suit No. 5021 but little need be said. Pearl Haney testified that she did not have any interest in the cotton involved in that case’ and did not claim any interest therein. She was corroborated by the testimony of her father. Therefore, the court properly told the jury that the undisputed evidence showed that she was not the owner of the cotton. But it is claimed by her that the court erred in directing a verdict for the defendant. The basis of this claim is that D. W. Pender at the conclusion of the testimony asked to be allowed to intervene and claim the cotton, and the court refused to allow him to do so. The record shows that at the conclusion of the evidence Pender asked to be allowed to intervene and that the court refused to allow him to do so. Pender saved no exceptions to the ruling of the court and filed no motion for a new trial. Therefore, under the settled rules of this court there is nothing’ for the court to review as to him. It is true the record shows, that Pearl Haney excepted to the ruling of the court in refusing to allow her father to intervene and claim the cotton, and made the action of the court one of the grounds in her motion for a new trial. It is obvious, however, that she could not act for Pender. She suffered no prejudice to her rights by the action of the court in refusing to allow Pender to intervene and there was no error in the court directing a verdict for the defendant.
In No. 5022 it is insisted that the court erred in dismissing the interplea of Pearl Haney and refusing to allow her to have her rights decided by the jury. The record does not show that the'court made any order dismissing her interplea. We presume that her contention in this behalf is based upon the instructions given by the court.’It will be remembered that the court told the jury that the only question for it to determine from the evidence was whether or not at the time the check was given B. H. Haney was the owner of the cotton, or whether D. W. Fender was the owner thereof and entitled to the amount of the check. Pearl Haney disclaimed any interest in the cotton and testified that she had mortgaged the rents to her father. He corroborated her testimony. It is obvious, then, that the court did not err in defining the issue to the jury in so far as she was concerned.
(2) It is next contended that instructions numbered 4 and 5 arfe inconsistent with each other. These instructions are set out in the statement of facts and need not be repeated here. It is evident that all the parties to the action considered the issue to be whether or not B. H. Haney or Fender owned the crop. All the parties agreed that Bloom gave full value for the cotton and that he owed some one for it. Bloom and the bank in their answer admitted that they owed some one for the cotton. They stated that Pearl Haney gave them notice not to pay the amount of the check to B. H. Haney. They asked that they hold the amount due on the check subject to the order of the court. They withheld payment on the check at the request of Pearl Haney, and if they wished to escape judgment for the money and the payment of costs in the action they should have deposited the money in court. It is obvious that they could not hold the money in their hands which they admitted belonged to either Bloom or D. W. Fender and escape a judgment against them for the amount of the check. The right of B. H. Haney to recover depended upon whether or not he had purchased the crop from Pearl Haney. According to his testimony he purchased the crop in good faith from her and paid full value therefor. His right to recover was made to depend upon the truth of his testimony in this regard. Pearl Haney denied that she had made the sale to him, but the jury has settled this disputed question of fact in favor of B. H. Haney. D. W. Fender could have no claim against Haney to the crop, for the mortgage of the rents to him by his daughter was never reduced to writing and filed for record as required by the statute. Kirby’s Digest, § 5396... Therefore, he acquired no lien, superior to the right of B. H. Haney if the latter was a bona fide purchaser of the crop.
It follows that the judgment in each case should be affirmed.
