Hance v. Burke

Henry, Associate Justice.— Appellee, who was plaintiff in the District Court, charged that W. B. Hance and Emma Hance took unlawful, forcible, and malicious possession of certain wearing apparel and household effects belonging to him, for which he claimed damages, actual and exemplary. The defendants answered that Emma Hance was the wife of her codefendant, and denying the allegations of plaintiff’s petition. There was a verdict for plaintiff for a sum of money as actual damages, on which judgment was rendered in his favor against W. B. Hance and against him in favor of Emma Hance. The defendant W. B. Hance prosecutes this appeal. The evidence conduces to show that plaintiff was in possession of a farm belonging to Hance, and that Hance, in February, 1886, in the absence of plaintiff, took forcible and unlawful possession of the farm and house in which plaintiff was then living with his family, and in which the effects sued for were situated. Shortly afterwards Burke instituted against Hance an action of forcible entry and detainer for the possession of the place. This suit was tried in the Oounty Court in the fall of 1886, and final judgment was rendered in favor of Hance. In 1887 a judgment was rendered in the District Court in favor of Hance and against Burke, establishing Hance’s title to the property. The evidence conflicts on the question as to whether Burke applied for the possession of his goods and whether the delivery of them was refused, as to their value, the extent of their damage, and what care was taken of them by Hance while in his possession. There is evidence showing that plaintiff sent an order for his property and that Hance then refused to let him have it because he doubted the authenticity of the order, but shortly afterwards on learning that the order was authentic offered to deliver the property, and (Burke then declining to go or send for it [66] again) sent it to him, and that the property was damaged for the want of diligent care while it was in the possession of Hance. The court charged the jury in substance: That Hance being the owner of the farm and entitled to its possession had the right to take possession if he could do so without committing a breach of the peace. That if Hance got possession of the house by intimidation it was his duty to send Burke’s goods to him, but if he got such possession peaceably and without intimidation it was Burke’s duty to go for his goods. That if Hance took possession of the house by intimidation and detained any of Burke’s goods, and they were damaged by such detention, he would be liable for such damage; but if he took possession of the house without intimidation and properly stored the goods, and they by time became damaged before he delivered them to Burke, then he would not be liable for such damage as they sustained by reason of the lapse of time. That if Hance did not return all of Burke’s goods he was liable for the value of such as he did not return. The errors assigned relate principally to charges of the court, and complain in effect that the cause of action was treated as a trespass when in fact it was in the nature of detinue. We do not find this objection sustained by the record, but find the charge correct, tested both by the pleadings and the evidence. It is also objected that plaintiff’s amended petition fails to set forth the names of the parties and their residences. The names of both parties are given in full in the caption of the amended original petition and do not otherwise appear. In the body of the petition the parties are referred to as plaintiff and defendants. As the amended petition takes the place of the original, correct pleading requires that it state the names of the parties and their residences. An exception to the pleading because of the omission would no doubt have been sustained. The objection not having been made in the court below can not be regarded here. The fourth and fifth errors assigned read as follows: “The court erred in the charge as to whether it was Burke’s duty to come for his goods and get them or Hance’s duty to carry the same to Burke;” and “the court erred in the charge as to liability of W. B. Hance for damages the goods may have sustained.” We do not think these objections are well taken. The charges in effect state that if Hance took wrongful possession of plaintiff’s goods it was his duty to restore them to him, but if he obtained possession of them rightfully he would not be liable for holding them until their owner applied for them; and that if the goods sustained damage while being wrongfully held he would be liable for such damage. [67] The verdict we think was responsive to the charge, sufficiently supported by the evidence, in proper form, and warranted the judgment rendered on it. The judgment is affirmed. Affirmed. .Delivered February 15, 1889.