Cohn v. Lovell Lumber Co.

Ethridge, J., delivered the opinion of the court. The appellants sued the appellee in trespass in two counts: One for the statutory penalty for the cutting of forty-five pine trees and five oak trees from the lands of the appellants; and the second count for the actual value of the timber cut, alleging the value to be nine hundred dollars. The defendant appellee pleaded the general issue upon each count. There was no pleading of tender and amends, but at the beginning of the trial before the jury the defendant’s counsel made the following statement: “We want to tender twenty-four dollars and fifty cents to the plaintiff to cover twelve thousand two hundred fifty feet of timber, the amount claimed by the defendant to have been cut by him, and plaintiff declines.to accept the tender.” All of the evidence before the jury is not contained in the record. The stenographer certifying that a certain portion thereof had been lost by reason of his losing his notes of the evidence, one of his note books used for taking the evidence being lost, and there is no effort or bill of exceptions taken to show what the missing evidence is. • At the close of the evidence the defendant moved the court to require the plaintiffs to elect upon which count they would proceed, which motion the court sustained, and the plaintiffs elected to stand upon the count for actual value. The appellants assign this requirement for election to be error, and also assign for error that the court taxed the plaintiffs with half of the costs. In Batson-McGehee Co. v. Smith, 98 So. 534, we held that the plaintiff was not required to elect between the two counts, but was entitled to go to the jury and have the jury determine from their finding of the evidence up [720] on which count the plaintiff was entitled to recover, pointing out that questions in these cases frequently turn on the determining hy the jury of the fact as to whether the trespass was willful or not. The plaintiff cannot recover both, but is entitled to go to the jury and have the jury determine whether the trespass was willful or not under proper instructions of the court. The appellee says that the appellants are not prejudiced by this ruling because the evidence in no event warranted the jury in finding a willful trespass. The record not having all of the evidence, we are unable to see whether the facts warranted the court in submitting to the jury the law in regard to the statutory penalty, and we must presume where the evidence is not in the record that it supports the verdict, and cannot reverse for this error, because it is not apparent that it was harmful to the appellants. We do not think, however, the court below was warranted in taxing the appellants with half the costs. The plaintiff is generally entitled to full costs where he is successful, and the tender, if it may be called such, was insufficient to preclude appellants’ rights because the costs were not tendered. Collier v. White, 67 Miss. 133, 6 So. 618; The judgment will be reversed as to costs but affirmed in other respects. Reversed in part; affirmed in part.