130 Ky. 714 | Ky. Ct. App. | 1908
Opinion of the-Court by
Affirming.
Appellee brought this action of claim and delivery .(detinue) against appellant for the recovery of certain mules, cows, wagons, hogs, and other chattels which she alleged belonged to her intestate’s estate. Each article was described and valued as required by the Code of Practice. The petition also alleged that certain of the articles named, and valued at $249. had been disposed of by appellant, so that they could not be found. She prayed judgment for a recovery of the articles on hand, and for $50 in damages for the detention of the property. Appellant denied ap
Appellant within three days moved the trial court to grant him a new trial. The only ground then asserted that can be reviewed upon this appeal was the failure of the jury to designate the specific property to be returned to the plaintiff and its value, and the damages awarded', if any, for its detention. The motion for a new trial was overruled. Time was .taken to prepare and file a bill of exceptions, but' the bill was not filed. The appeal prosecuted from the judgment therefore presents but the single question whether the judgment is authorized, or might be authorized, by the pleadings. For, in the absence of a bill of exceptions and evidence, it will be presumed that the evidence and instructions authorized the verdict rendered, provided the state of pleadings do. Section 388, Civ. Code Prac., upon the manner of giving judgment, reads: “In an action for the possession of specific personal property, the plaintiff may have judgment for its delivery, if it can be had , and, if not, for its value and for damages for its' detention. # * *” The petition in this case contained this prayer for relief: “Wherefore the plaintiff, Mary .Gambrell, prays judgment against the defendant for the recovery of said mule, wagon, and harness. She prays for judgment against him for $249 for the property he has heretofore disposed of —one mule, steer, and four hogs. — for damages in the amount of $50 for the detention of said property,
Copied into the record are what purports to be instructions presumably given on the trial. But these' we cannot notice. They were not made part of the record by bill of exceptions or otherwise. Meaux v. Meaux, 81 Ky. 475, 5 Ky. Law Rep. 548; Forest v. Crenshaw, 81 Ky. 51, 4 Ky. Law Rep. 596; Meador v. Turpin, 4 Metc. 94; Higgins’ Adm’r v. L. & N. R. R. Co., 38 S. W. 876, 18 Ky. Law Rep. 899; Tinsley v. White, 54 S. W. 169, 21 Ky. Law Rep. 1151. Nor, in the absence of a bill of exceptions, can the appellate court inquire into the propriety or correctness of the instructions that may have been given. Beaven v. Phillips, 83 Ky. 88, 7 Ky. Law Rep. 9. If the fact was that the chatties described as on hand when the petition was filed were surrendered to
Judgment affirmed.