155 Mo. App. 662 | Mo. Ct. App. | 1911
This is a suit in replevin for the possession of a hog. Plaintiff recovered and defendant prosecutes the appeal.
Because of the meagre abstract of the evidence, we are unable to ascertain the precise facts,, but infer from what appears that plaintiff and defendant are farmers who own and occupy adjoining farms in Pike county. There- is no direct evidence of this fact in the record but enough appears to suggest a reasonable inference to that effect. The case concedes that plaintiff owned the hog in controversy and that it was wrongfully detained by defendant in Pike county at the time of the institution of this suit in replevin unless defendant’s detention of the hog was justified by its being found damage feasant in his corn. The jury found the fact as though the hog was plaintiff’s property and as if it was wrongfully detained by defendant.. But it is argued by defendant though plaintiff’s hog was detained by him he was justified in detaining it for the reason it was found damage feasant in his corn and plaintiff refused to compensate the loss. If this fact be true, there is not a word in the evidence as abstracted which tends to show it either by direct proof or by reasonable inference. We have read every word of the testimony in the abstract thereof several times and have been unable to discover anything therein suggesting that plaintiff’s hog was either on defendant’s premises or in his corn. We are not permitted to accept the statements of counsel in their statement.of facts and brief as to such matters, but must look to the evidence in the bill of exceptions as abstracted therefor. The evidence in the bill of exceptions must be abstracted at least in the narrative form so the court may understand what it tended to prove. It is not sufficient for counsel to express his opinion in the brief as to its purport, for such is the province of the court on appeal. [Reed v. Peck, 163 Mo. 333, 63 S. W. 734; Furstenfeld v. Furstenfeld, 152 Mo. App. 726, 131 S. W. 359.] What the bill of exceptions may show, we
All of defendant’s refused instructions which we are invited to examine predicate upon the theory that defendant was justified in detaining the hog because it was permitted to escape through a division fence and did damage to his corn. As there is no evidence before us that the hog was on defendant’s premises or damaged his corn, the instructions appear to have been properly refused and it is unnecessary to examine them further. Inasmuch as nothing appears tending to prove the hog passed from plaintiff’s premises to those of defendant, the question of law suggested touching the respective. obligations of the parties as to the division fence appears to be immaterial and for that reason will not be considered. The record proper is not challenged. It appears to be in the usual form and sufficient.
The judgment should be affirmed. It is so ordered.