Dighera v. Wheat

Per Curiam: The appellees recovered judgment against the appellants in this action for the wrongful and malicious taking of corn which appellees claimed to be exempt to them as feed for their stock. [459] The errors complained of are: (1) The admission of evidence of Marcy and Hatcher, which consisted only in the presentation by each of a memorandum of the amount of corn delivered by appellees to appellant Wheat, which each witness had written off at the request of appellees, who were unable to make the memorandum. The circumstances were fully explained to the jury, and we do not see that the evidence could have any different weight than if the memorandum had been prepared by the appellee. (2) That the court erred in giving certain instructions relating to exemptions. The evidence of one of the appellants shows that Wheat had procured a sham order of attachment to be issued by a justice of the peace, not to take property to satisfy a claim of indebtedness, but expressly ordering the taking of a certain number of bushels of corn. We think the evidence justifies the instruction. (8) That the trial court erred in certain instructions relating to exemplary damages. Appellant Wheat, in at least a part of his testimony — the evidence not being consistent with itself — claimed the right to take the corn on the ground that he had bought a specific crib of corn, a portion of which was the corn taken. At the same time, instead of going and taking the corn, as he claimed he had a right to do, he procured the order of attachment, and appellant Cochenet testifies, in substance, that after being informed that the appellees claimed the corn as feed for their stock, they took all of their corn, but seven or eight bushels. (4) That the trial court erred in not instructing the jury as to Wheat’s rights to the corn according to his theory. The court fairly instructed upon the evidence generally, and we do not find from the abstract that the appellants asked any instruction upon this specific matter. (5) That the court erred in overruling appellants’ motion for a new trial. (6) That the court erred in rendering judgment on the verdict of the jury. We [460] think the verdict and judgment are fully supported by the evidence and that no prejudical error against the appellants occurred in the trial. The judgment is affirmed.