Peterson v. Hutchinson

Gregory, J. Suit by appellee against appellant for slander. The words charged are: “He stole my hogs;” “he marked my hogs; ” “ ho penned my hogs.” The defendant answered in three paragraphs. 1. General denial. 2. Statute of limitations. 3. That the plaintiff had marked and penned defendant’s hogs, whereby the former was induced to believe that the latter intended to commit a larceny. The plaintiff replied to the second and third paragraphs by the general denial. Trial by jury; verdict for the plaintiff for five hundred dollars. Motion for a new trial overruled. The evidence is made a part of the record by a bill of exceptions. The plaintiff, on the trial, was permitted to prove, over the objection of the defendant, that the latter told the witness “he wanted to bring the case here on a change of venue, because he wanted Hutchinson to have some trouble as well as him all.” The case was commenced in the Carroll Circuit Court, and before the time of this conversation it was taken, by change of venue, to the Cass Circuit Court. The conversation was had in Cass county. This ruling of the court was error. The law secured to the defendant the right to a change of venue. Nothing that was said about that change could have the effect of increasing the damages; nor could it in any way show with [39] what mind the words charged were spoken. This was one of the grounds of the motion for a new trial. There are ,several other grounds for a new trial, but they become unimportant iu view of the fact that the-defendant is entitled to such new trial, and may not arise. on a second trial. The question of variance can be obviated by an amendment of the complaint. The surprise set up as a cause for a new trial will not probably occur ou another trial. D. P. Baldwin, for appellant. L. Chamberlain and J. C Applegate, for appellee. The only question before us is, did the court below err in overruling the defendant’s motion for a new trial? The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial, and for further proceedings.