Hendricks v. . Ireland

Apr 16, 1913
Versions:162 N.C. 523
77 S.E. 1011
1913 N.C. LEXIS 386
PeR Curiam.

This is an action for the recovery of personal property, with the ancillary proceeding of claim and delivery. The property was seized under the requisition, and replevied by defendant upon his giving bond. Plaintiff recovered in the 'action, and the usual judgment was entered for the return of the property, if to be had, and if not, then for its value, which the jury assessed at $400, and damages for deterioration at $70, and fqr detention at $217. This was correct in form (Revisal, sec. 570), and it was for the jury to ascertain the amounts.

1. It was not error to reject the issues tendered by defendant, as they were fully covered by those submitted. Albert v. Insurance Co., 122 N. C., 92; Coal Co. v. Ice Co., 134 N. C., 574; Deaver v. Deaver, 137 N. C., 240.

2. The damage.to the logs while in possession of the sheriff under the order of seizure was not recoverable by the defendant, as he failed in the action, and the logs were not his property, and consequently no loss was suffered by him. This testimony could not have been pertinent to the counterclaim, for.if the property was injured while in the custody of the sheriff, it was something of which the owner alone could complain, .and did not relate to the efficiency of the plant agreed to be sold *525 according to defendant’s allegations. If tbe defendant bad established ownership of the property, the objection would have had more force.

3. The objection “to the instruction given by the court to the jury” is too general, and for that reason cannot be considered. An exception to a charge must specify the error therein. Leak v. Covington, 99 N. C., 559; McKinnon v. Morrison, 104 N. C., 354. Besides, the charge was free from error.

4. The item of $10.31, which was allowed against defendant in the bill of costs, appears to have been so taxed by consent of the parties, and, therefore, is not subject to exception. The other item of $26, cost and expense of seizing and caring for the property, was properly allowed. Revisal, secs. 637 and 799; R. R. v. Main, 132 N. C., 445.

"We have carefully examined "the record and case on appear- and are convinced that the ease was properly tried.

No error.