139 N.W. 786 | S.D. | 1913
During the month of April, 1909, the plaintiff leased from one Henry Eberhard the N. W. % of seotipn 10, in Ash Creek township, in Stanley county, belonging to said Eberhard, and also the guarter section adjoining this -on the north, known as • the Leach land. The lease was verbal, but the consideration was paid in advance. .Plaintiff was to use the land for grazing or for cutting hay, or any -other use.to which he wished to put it. Eberhard reserved for himself a small piece of garden land, or “truck patch,” as he called it, but agreed with plaintiff, at the time -of making the lease, that he wo-uld fence his garden, and that, if plaintiff’s cattle -got into it, it- would not cost plaintiff anything. Plaintiff used the leased land for grazing purposes from the -time of making the lease until the 3rd day of July, 1909.
Early in the morning of July 3d Eberhard gathered 98 head of plaintiff’s cattle on or near the leased premises in section 10, and drove them to a corral, alleged -to be the to-wn pound, situsated on the S. E. % of section 33, in Ash Creek township, an-d owned and -occupied by the defendant. Plaintiff took up the trail of his stock shortly after Eberhard started with them, and followed -them -to defendant’s place, where he arrived very shortly after they had been- put into said corral, and demanded that they be released and -delivered' to him. This demand -was refused, and the cattle were retained by defendant for four days. Plaintiff brought this suit in claim and delivery, alleging in bis complaint, after a .particular description of -his stock, that they were wrongfully detained by the -defendant; -that -they were not properly fed or watered while in defendant’s possession; and that, because of their not having been properly fed and watered, the -cattle depreciated in value, to plaintiff’s damage, in the sum of $500. He prayed for the recovery of immediate possession of his stock -and his damage in the sum -of $500. He furnished' a -bond, and had the'stock returned to-him by the sheriff, ' •
The defendant, in bis answer, justified bis detention of plaintiff’s stock as follows: “For a -separate and specific defense, the
The case was tried to a jury. At the close of the trial, plaintiff and defendant each moved the court to direct a verdict in his favor. Plaintiff’s motion was denied, and the court directed the jury to return a verdict -in favor of defendant, which they did, fixing the value of the cattle at $2,940, and fixing the value of defendant’s lien thereon at $113.70, whereupon the court entered judgment, awarding the defendant possession of the cattle, the amount of the lien as fixed by the jury, and his costs and disbursements taxed at $243.55, amounting in all to the sum of $357.25. The court denied plaintiff’s motion for a new trial, and he brings the case here on appeal. The plaintiff saved exceptions to practically all the rulings of the court, and numerous errors are assigned upon these rulings. Consideration of such assignments as are necessary to arrive at a 'conclusion of the case will be taken up in their order.
Section 1008 of the Political Code provides: “The. electors of each town have power, at their annual meeting: 1. To determine the number of pound masters and the location of pounds * * * (2) To select such town officers as are required to be chosen. * * * * * (5) To make all rules and regulations for impounding animals.” Section 1003 provides: “Each organized township iti the state of South Dakota is a body corporate, and has capacity * * * (4) To pass bylaws or ordinances for the government of such township and for the protection of the lives and property of its inhabitants, and to enforce the same in its corporate name before any justice of the peace in such township; and the process of procedure shall be the same as other actions before justices- of the peace, and to make such orders for the disposition, regulation or use of its corporate property as may be deemed by its board of supervisors to be conducive to tíre best interests of its own inhabitants.” It will be noted that, under section 1008, if is the electors who determine the number of poundma-sters and the location of
It follows that the judgment of the trial court must be reversed, and the case remanded for a new trial, in conformity with the views herein esgpressed.