| Ark. | Feb 25, 1905
(after stating the facts.) This is an action of replevin to recover cattle, the possession which the plaintiff claims by virtue of a mortgage by one of the defendants. The defendant who execn'ed the mortgage made no defense, and a judgment was rendered against him for failing to answer. The other defendant, who was not a part to the mortgage, denied that the cattle seized under the writ of replevin were included in the mortgage; and whether this was so or not was the only issue in the case.
As the defendant gave bond for the retention of the property seized by the officer, he could not afterwards deny that he was in the possession of such property at the time the action was commenced. The court was therefore in error in telling the jury, as he did in the first instruction, that the burden to prove that fact was on the plaintiff. But, as the fact that the defendant J. C. Heffner was in the possession of the cattle seized under the writ, and which he claims as his property, was not disputed, either in the pleadings or the evidence, and as this fact seems to have been conceded all through the trial, we do not think that this error was prejudicial, or had any effect on the verdict.
While the defendant, having executed a retaining bond, was estopped from denying that he was in possession of the property seized by the officer, he was not estopped from denying that this property was included in the mortgage upon which plaintiff based its right to recover, nor from showing that it belonged to him individually, and that plaintiff had no right to it. Plaintiff’s contention on this point was clearly untenable. The whole trial seems to have been directed to the question as to whether these cattle were the same cattle that were mortgaged by the defendant W. L. Heffner to the plaintiff, or whether they were cattle belonging to the defendant J. C. Heffner, and not included in’such mortgage. As the evidence clearly shows that they were never included in the mortgage, we are of the opinion that the errors complained of were not prejudicial, though they call attention anew to the fact that a trial judge in instructing-a jury should keep clearly in his mind the questions at issue, and not submit to them matters which are not in dispute, and which are concluded by the pleadings or the undisputed facts.
On the whole case, the judgment must be affirmed, and it is so ordered.