90 Ind. 563 | Ind. | 1883
— This was a suit' by the appellees to recover the possession of “ six head of hogs,” of the value of $10 each, and of the aggregate value of $60, of which, they alleged, they were the owners and entitled to the possession, and that appellant had possession thereof, without right, and unlawfully detained the same from the appellees. "Wherefore, etc.
The cause was put at issue and submitted to a jury for trial, and a verdict was returned for the appellees, that they were the owners and entitled to the possession of the property described in the complaint, and that, at the commencement of this suit, such property was unlawfully detained by the appellant. Over the appellant’s motions for a new trial and in arrest of judgment, the court rendered judgment for the appellees upon and in accordance with the verdict.
Appellant has here assigned as errors the following decisions of the circuit court:
1. In overruling his motion for a new trial; and,
2. In overruling his motion in arrest of judgment.
The second of these alleged errors calls 'in question, after .verdict, the sufficiency of the facts stated in appellees’ complain tto constitute a cause of action; The only objection to the complaint, pointed out in argument by the appellant’s counsel, is that it does not “ particularly describe ” the property sought to be recovered. It must be confessed, we think, that there is not much particularity in the description of the property sued for in this case; but, in Smith v. Stanford, 62 Ind. 392, it was said, in substance, that the object of the particular description of the property sued for, required by the statute in actions of replevin, would seem to be to enable the proper officer to take and deliver the property to the plaintiff in suit; and it was held that if the description of the property was sufficiently specific for the accomplishment of that object,the complaint would, in that respect, be sufficient.
Under the alleged error of the court in overruling the motion for a new trial, the appellant’s counsel first complains in argument of the onlyinstruetion of the court to the j ury, as follows:
“ Under the evidence in this case, the only questions for the jury are, whether the hogs in controversy, when taken up by the defendant and when this suit was commenced, were the property of the plaintiffs. If it is shown by the preponderance of evidence that at the times named the plaintiffs owned said hogs, then, under the other evidence in this cáse, about which there is no material controversy, the plaintiffs will be entitled to a verdict in their favor.
(Signed) “ E. P. Hammond, Judge.”
The court did not err, we think, in giving the jury this instruction. Upon the evidence, as it appears in the record, the court would have committed no available error, as it seems to us, if it had instructed the jury,in plain and direct terms, that they must find for the appellees, the plaintiffs below. All the evidence showed, without the .slightest conflict, that the hogs in controversy, when taken up by the appellant and when this suit was commenced, were the property of the appellees; and the only conflict in the evidence was in reference exclusively to irrelevant and immaterial matters. In such a case it is well settled that the trial court may, without invading or usurping the province of the jury, direct their verdict in favor of the party entitled thereto. Dodge v. Gaylord, 53 Ind. 365, on p. 378, and cases cited; Moss v. Witness Printing Co., 64 Ind. 125; American Ins. Co. v. Butler, 70 Ind. 1.
Appellant’¡^counsel complains of the action of the court in refusing to give the jury certain instructions, at his request. ’These instructions proceeded upon the theory of appellant’s defence, as hereinbefore stated. They were not the law, as .applicable to the case made by the evidence adduced upon the trial, and the court did not err in refusing to .give them.
The verdict was clearly right upon the evidence, and the motion for a new trial was correctly overruled.
The judgment is affirmed, with costs.
.Hammond, J., took no part in the decision of' this cause.