McDonald v. Ramzy

Opinion by JIONBS, O. This appeal is from a judgment of the district court of Wiagoner county, Okla., wherein the appel-lee, J. W. Ramzy, procured a judgment against the appellant, C. O. McDonald', for the possession of nine head off cattle, or damages in the sum of $100 in the event possession of the cattle was not obtained. This litigation grows out of an action on the part of the appellee, Ramzy, in dis-training nine head of cattle belonging to the appellant, McDonald, found trespassing upon Ramzy’s premises and upon his crop off cotton on the 3rd day of November, 1923. Distraint proceedings were commenced as provided by law, and the cattle had 'been taken in charge by the defendant, Ramzy, and on the same day the plaintiff, McDonald, instituted the replevin action, and replevined same as the owner thereof. Thereafter the defendant, Ramzy, filed his answer setting up the fact that he had distrained the cattle 'because they were trespassing upoln his crop, and further answering by cross-petition averred that he had been damaged by reason' of the trespassing of the cattle in the sum of $260, and upon the issues thus joined the cause was submitted' to the court anfl. jury, and an alternative judgment rendered' for the possession of the cattle, or damages in the sum of $100. The only assignment of error' urged in this court by appellant is that:. ‘‘Said court erred in admitting incompetent, irrelevant, and immaterial testimony, and evidence into the record over the objections and exceptions of the plaintiff.” This objection was directed at certain evidence offered on the part of the defendant in support of his cross-petition for damages, tending to show that the cattl* of the plaintiff, McDonald, had trespassed upon the defendant’s crop the day before the nine head of cattle here in contr jviursy. wore distrained by the defendant, Ramzy. Ap-_ pellant takes the position that each and ev- *204 <?ry trespass is a separate and distinct cause— "that the only claim or lien defendant can assert ,is the damages for the trespass cotm-mitted at the time the cattle in controversy were taken up.” . We cannot agree with this contention. The procedure here followed has been upheld by this court in the case of Sharrock et al. v. Pryor, 36 Okla. 305, 128 Pac. 243, wherein the following rule was announced in the first paragraph of the syllabus of the opinion: “Where a trespassing animal is distrainer for damages, and the owner of such stock bring an action in replevin for such stock, and the defendant files a cross-action for the damages sustained and damages arc awarded him. then, under sectioto 100, O. S. 1900. he has a lien on such stock for such damages.” • Prom a reading of the Sharrock opinion, we think the facts were very similar to the facts in this case, and evidently the damages sought to be recovered include damages other than that done at the time that the hog was destrnined. and we see no good reason, and no authority of law is called to our attention, which prevents a recovery of all damage done by the cattle or animals be- , longing to the plaintiff in the replevin action, although various trespassses may have been committed by the animals. There is no question in this case but that all of the cattle trespassing upon the defendant’s crop at the different times mentioned belong to the plaintiff, McDonald, and we hold that the court committed no error in admitting evidence of trespasses committed by McDonald’s cattle on the day prior to the day on which the cattle were distrained. Finding no merit in the errors assigned, we hold that the judgment of the court should be, and the same is hereby affirmed. By the Court: It is so ordered.- Noite.—See 3 C. J. p. 141 § 432; 1 R. C. L. p. 1140; 4 R. C. L. Supp. p. 73; 5 R. C. L. Supp. p. 61.