15 N.M. 500 | N.M. | 1910
OPINION’OF THE COURT.
This tras an action of replevin, tried before a jury and resulted in a verdict and judgment thereon against the appellants.
1. Appellants assign error in that the verdict is contrary to the evidence and not sustained by it.
No evidence of that market price was introduced and it would be rather difficult to show that the property involved in the action had any use as that term is generally understood. Cobbey on Replevin, sec. 888.
2. Counsel for appellants seriously urges for our consideration a variance which he says exists between the verdict and the judgment.
Our attention is called to the record, where it appears by the verdict that 5.20 pounds of wool were found to have been taken by plaintiffs from the sheep during the time they were replevined.
The judgment is rendered on the basis of five hundred and twenty pounds.
The clerk’s minutes, in which the verdict is placed of permanent record, contains the words: “Wool five hundred -and twentjr pounds.” The evidence was sufficient to sustain a finding that plaintiffs did shear five hundred and twenty pounds of wool from the sheep.'
3. This action was brought by “Emmett Wirt, Eugenio Gomez and Eelix Garcia, a copartnership doing business under the firm name -and style of AVirt, Gomez and Company.”
The appellants allege error because a judgment was rendered against them as a copartnership instead of against them individually.
' Eor .the reason that it appears that the appellee in his answer alleged the wrongful taking by the appellants of wool, and the evidence being sufficient to sustain.- the finding by the jury that appellants had taken five hundred and twenty pounds of wool of the value of ten cents per pound, from the sheep during the time they were replevined, the judgment of the lower court will be affirmed upon the appellee filing a remittitur of $52.00, within 15 days from this date. Otherwise the judgment, will be reverséd.