Hawes v. Smith

Wade, J. 1. Since the verdict was in favor of the claimant, no possible injury could have resulted to the plaintiff in fl. fa. because of the failure to administer to the jury the oath (Civil Code, § 5169) “to give such damages, not less than ten per cent., as may seem reasonable and just, to the plaintiff against the claimant, in case it shall be sufficiently shown that such claim was made for delay only.” 2. There were some conflicts in the evidence relating to the application of various payments, made by the defendant in fi. fa., to the extinguishment of the purchase-money note which was the basis of the case for the claimant, but there was direct evidence from the defendant in fi. fa. himself that he still owed to the claimant “about $85 on that note for the mule claimed in this case,” and there was other testimony to support the conclusion of the jury that the payments made had not, either by direction of the defendant or by operation of law, been applied to the retention-of-title note. Whether or not that note had been paid in full was a question of fact for determination by the jury, and while the evidence is not altogether clear, there was some evidence to support the verdict; and since the trial judge approved the finding of the jury, we do not feel authorized to set it aside. Judgment affirmed. Levy and claim — appeal; from Bibb superior court — Judge Mathews. July 15, 1914. C. J. Johnson, for plaintiff. F. & Hugh Chambers, for claimant.