Woodruff v. Wilkinson

Jackson, Chief Justice. [A fi.fa. in. favor of Wilkinson & Hatcher was levied on a horse as the property of Walter Woodruff, and a claim was interposed by his mother, Mrs. S. M. Woodruff. On the' trial, the evidence for the plaintiff was, in brief, as follows: Defendant in fi.fa. had possession, and was using the horse levied on, since the rendition of the judgment-He exchanged a mule with one Jones for this horse; said nothing about the mule not belonging to him. The evidence for the claimant was, in brief, as follows : The mule which was exchanged for the horse- did not belong to defendant in fi.fa., but to the claimant, his mother. His father bought the male and gave it to his mother, but loaned it to defendant to make a crop with. The father told defendant’s wife to look after the mule, and not let defendant drive it too hard. He authorized the exchange for the horse. He admitted that the wife of the defendant va. fi.fa. at one time interposed a claim to the horse at his instance, and explained it by saying that he told her to see that the horse was not driven too hard and was properly taken care of, and she did put in a claim, believing that, as the horse had been entrusted to her care, she had a right to do so. The jury found the property subject. Claimant moved for a new. trial, on the following among other grounds: (1.) Because the verdict was contrary to law and evidence. (2.) Because the court permitted counsel for plaintiff to ask the following question of the. defendant’s father while on the stand, and admitted the reply thei*eto: “ Did not Dora, the wife of Walter, at one time, at your request, put a claim in for said horse, when it had been levied on, and [117] did you not tell Colonel Butt and E. W. Miller that it was Dora’s horse, and that you advised her to put in the claim ?” — Objected to as irrelevant, and because the record of the claim would be higher evidence. (3.) Because the court refused to rule out the evidence of Jones, who had exchanged the horse in controversy with defendant in fi. fa. for a mule, and also the testimony of one McCuller, who testified to the exchange.—The objection was that defendant in fi. fa. was dead. The motion was overruled, and claimant excepted.]