McNeeley v. Hunton

Ewing, Judge, delivered the opinion of the court. This was an action against the defendant for the alleged taking and carrying away of certain horses, the property of the plaintiff, and causing them to' be levied on and sold by the [334] sheriff of Benton county. The answer denied seizing and taking away the horses as charged in the petition, but alleged that the horses mentioned in the petition were the same that were sold tinder an execution in favor of defendant and against one James Burns, and that they were the property of said Burns and not of the plaintiff. The errors assigned are the giving and refusing instructions and overruling defendant’s motion to dismiss the cause. The instructions given on the part of the plaintiff presented to the jury fairly and clearly the law arising upon the pleadings and evidence. The questions for the jury were whether the horses were the property of the plaintiff, and, if so, did the defendant cause them to be levied on and sold as the property of the execution debtor Burns ? These points were submitted to the jury in the first instruction given for the plaintiff. The second instruction was based upon evidence touching the agency of Burns in purchasing the horses in controversy, and declared that although Burns may have purchased them, yet if, in doing so, he was the plaintiff’s agent, and the money for that purpose was furnished by her, she is entitled to a verdict. This instruction needs no comment; it was obviously correct. All the instructions asked by the defendant were given except the following, namely : “ That unless the defendant seized, took and led away the horses in plaintiff’s petition mentioned, they should find the issues for defendant.” This instruction erroneously assumes that the defendant could not be a trespasser without an actual participation in the act of seizing and removing the property from the owner’s possession. It is hardly necessary to say that such is not the law, and that he who directs or assents to a trespass is liable equally with him who does the act which constitutes the trespass. If the defendant caused or directed the horses to be levied on and sold, he was a trespasser, notwithstanding he may not actually have taken them from plaintiff’s possession, or aided in doing so. Although the answer may not be considered as admitting the allegation of the petition that defendant directed the property to be [335] levied on and sold, jet there was evidence conducing to show this, and it warranted the instruction that was given for the plaintiff. As to the other point respecting the dismissal of the cause, it is sufficient to say that this ruling was shown to be sanctioned by the uniform practice of the court, and, without passing upon the propriety of such practice, we can not say that the court erred in refusing to make the plaintiff an exception to the rule, a rule with which both parties are presumed to have been equally cognizant. The rule being not to try a cause reversed and- remanded by this court until the second term after such reversal, we suppose that at the first term thereafter the cause would be continued as a matter of course, without a formal application therefor by the party. Such we understand was the disposition of this cause in the court below. Judgment affirmed; Judge Napton concurring. Judge