Klink v. Quinn

GATES, J. This is an action for damages for the conversion of six horses, a saddle, and harness, levied upon as the property of plaintiff’s husband by the defendant sheriff under a warrant of attachment against the husband. The important question at the trial was the ownership of the property. The evidence on the part of plaintiff tended to show the property 'belonged to her; [85] that of defendant tended to show it to- be ¡the property of plaintiff's husband. Verdict and judgment were for the plaintiff. Therefrom, and from an order denying a new trial, defendant appeals. [1] The first point raised by appellant is the insufficiency of the complaint, because it alleges ownership in plaintiff on August idfch and the levy by the sheriff on August nth. This discrepancy is now urged: (a) Under an exception to the overruling of an objection to the introduction of any evidence made at the beginning of the trial; (b) under an exception to the admission of evidence that there was no change in ownership -between the loth and nth of August; (c) under exceptions to the -denial of motions for a directed verdict, made at the close of plaintiff’s, evidence and alb the -close of -the trial. The objection made at the beginning of the trial -specified no grounds -as a 'basis for it. It was therefore insufficient. Pine Tree Lumber Co. v. City of Fargo, 12 N. D. 360, 96 N. W. 357; Davis v. C. & J. Michel Brewing Co., 31 S. D. 284, 140 N. W. 694. If appellant had then pointed o-ut the ground of his objection to the compliant, as it iw-as his- duty to -do if he «desired to take advantage of it, the plaintiff -would without doubt have asked- to amend the complaint, so as to allege ownership- and levy'on the same date, and without -doubt the trial court would have allowed the amendment. De Luce v. Root, 12 S. D. 143, 80 N. W. 181. Nor did appellant at any later .stage of the trial point out the defect. The defect is purely technical and clerical in its nature, and w.e ¡therefore decline to reverse the ruling -of the trial court on feat ground. [2] In her effort to prove ownership of one of the horses-, plaintiff was asked to state a conversation with her husband, had in the month -of May, preceding the levy, relative to- -a bay m-are which the plaintiff claimed to: ¡have bought before her marriage. This: was -objected to as not in the presence of -defendant (and on other grounds not argued), and the objection was- overruled. The answer was: “I told him to trade the m-are, if he could.” Fur-there -evidence -disclosed that fhie ¡husband did trade the mare for one of the horses -involved i’n this action. We fail to discover any prejudice in the -ruling, -even though erroneous. [3-5] Fight of -defendant’s requested instructions were denied. N]o beneficial -object would be advanced by reciting them-. Suffice it to say that some o-f them, while -correctly stating abstract prin [86] ciple's of law, were inapplicable to the issues, and that the remainder were covered by the .instructions as given. Furthermore, appellant in no way argued this matter in his brief, except to state that in his opinion these instructions should have been given, and that, if they had been given, the verdict would have been favorable to. bis client, and to cite without comment certain decisions of this and other courts. Finding no prejudicial error in the record, the judgment and order appealed from are affirmed.