17 Kan. 478 | Kan. | 1877
The opinion of the court "was delivered by
The first error complained of, is the action of the court below as to the instructions contained in the general charge. As to this objection, it is sufficient to say the only exception to the charge was thus taken: “ Excepted to by the defendant.” The charge as a whole, and in its general scope, is not erroneous, and the exception is unavailing. Wheeler v. Joy, 15 Kas. 389; Sumner v. Blair, 9 Kas. 521.
Objection is also taken to the action of the court in refusing to give an instruction to the effect, “that if plaintiff let Zipp have money to take to Colorado, and he brought back with him a part of the property levied upon, and such property was purchased with the money procured from plaintiff, the presumption of the, law is that it was his own property, unless there had been a bona fide purchase thereof by plaintiff before it was attached.” There was no error in this refusal, as the court in the general charge had fully covered the subject-matter intended to be presented to the jury in this instruction, and had stated therein more clearly the law upon this identical point. The court is not bound to repeat instructions to the jury, and should present the same in as simple and concise form as possible.
Objections are also made to the refusal of the court to give instructions Nos. 9 and 10. The ninth instruction so asked reads: ,
“ If you believe from the testimony that Zipp, in the presence and hearing of the plaintiff told the witness G.W. Todd that he was trading for the farm where this property was*483 taken from, and had purchased certain personal property to be used thereon, and was going to put the plaintiff then in charge thereof — asking said Todd what the house of Claflin & Thayer would say or think of his trading his old stock of boots and shoes into said farm and stock, and in going to Colorado — and the plaintiff did not dissent from or consent to said statement, you must find for the defendants, provided you find said personal property was taken to the farm and the same or its increase, or property it was exchanged for, is a part of the property in dispute.”
The instruction is .erroneous, and was never the law. The court might have stated to the jury, that if they found such facts to have existed, they could take them into consideration in determining the ownership of the property; but the court had no right to say “ they must find for the defendants.” The 10th instruction asked was —
“ If you believe from the testimony that the plaintiff told G. W. Todd that Zipp owned the property then on the farm, and she did not after that time, in good faith, purchase the same, you should find for the defendants, provided, you find that said property, its increase, or property with it traded for, is the same or a part of the property in dispute.”
A. S. Dennison was introduced by the plaintiff as a witness in the .court below, and after testifying in chief as to serving the attachment, the property taken, the value thereof, and that Mrs. Meiners and Mr. Zipp were present at the time, on cross-examination was asked: “Was Zipp using or exercising any control over any property there on that day?” and was also asked, “ if Zipp was present on the day of the sale of the property?” The court, upon objections being made, refused to permit the witness to answer. We find no error herein. The first question was too general in its character, and did not refer to the property in dispute. The last question was incompetent, and wholly irrelevant to the issues presented. For like reasons the court committed no error in refusing the witness Rucker to answer the same interrogatories.
Error is also alleged in the action of the court in permitting the following question and answer, while one Delia Fitzsimmons was being interrogated: “ Who was the owner of the property you have just described?” Answer — “Mrs. Meiners was controlling and directing the use of it,” etc. In the manner the question was answered we do not see that any conclusion of law was stated, nor that the witness understood that her opinion was desired other than as to the facts of the case. The reply was both intelligent and proper. The objection was properly overruled.
Error is also claimed because the property was valued by the jury at $386, and the damages assessed at $21.19. The petition states the property to be worth $431. Several witnesses testified to the value of each article sued for, and taking the different values sworn to, the jury found the same worth the amount returned in their verdict. It was their province to weigh the testimony, and as sufficient evidence was pre
This case is remanded with instructions to the court below to reverse the judgment as to Claflin & Thayer, and to affirm the same as to Palmer and Dennison.
The costs in this court must be divided between Palmer and Dennison plaintiffs in error, and Maria E. Meiners defendant in error.