35 Neb. 504 | Neb. | 1892
This was an action in replevin, brought by Peter Bur-mood to recover the possession of eight calves. The prop
The proofs show that at and prior to the commencement of the suit the parties resided on adjoining farms, and that defendant in error was the owner of the stock in question. The plaintiff in error introduced evidence tending to show that the calves were trespassing upon his cultivated lands. The evidence on the part of the defendant in error is to the effect that the calves escaped from his premises and went upon the highway, and were driven from the public road by plaintiff in error onto his farm, where they were placed in an enclosure; that as soon as the owner learned of their whereabouts he went to the residence of plaintiff in error for the purpose of bringing them home, and asked him to state the amount of damages they had committed, which he declined to do; that thereupon plaintiff in error in an angry and violent manner attacked defendant in error with a club, and drove him from his premises and refused to allow him to take away the calves. Subsequently this acJon was commenced.
The evidence was sufficient to authorize the jury in finding that the calves were not trespassing upon the premises of plaintiff in error, and that he wrongfully detained the same.
The main controversy in the court below was whether the calves, at the time they were taken up, were feeding in defendant’s corn field. On the trial plaintiff called and examined as a witness one Eberhart Kurz, who testified
Objection is made to the third instruction given by the court on its own motion, which is as follows: “ If you find from the evidence that the calves in controversy were on the 27th day of September, 1889, trespassing on the cultivated lands of the defendant, and damaged the defendant in any sum, the defendant has a right to impound said calves while so trespassing, and hold them until paid his damages, provided he gave the notice required by section 3 of the herd law, in a reasonable time after taking up said calves in the manner and according to the requirements of said section 3 of the herd law, and would be entitled to the possession of the said calves until paid his damages.”
It is the duty of a person taking up stock trespassing
Complaint is made of the form of the judgment. The jury found the value of the property and assessed damages to the plaintiff for the detention. The judgment is “that the plaintiff have and recover from the said defendant the return of the calves in controversy) or, if the same cannot be returned, then that the said plaintiff shall have and recover of and from said defendant the sum of $75, and his damages aforesaid in the sum of $2.50, and the costs of this action taxed at $-.” The verdict and judgment are both in form objectionable. Plaintiff is the general owner of the property, which was in his- possession at the time of the trial and the rendition of the judgment, he having become possessed of this property by means of the order of replevin. Its value should hot have been assessed by the verdict nor a judgment rendered for the samé, but merely for the damages found by the jury for the unlawful detention. Had the verdict been in favor of the defendant, then a judgment in the alternative in his favor for a return of the property, or for its value, would have been proper. Notwithstanding the judgment is wrong in form, .the de
Affirmed.