Garth v. Caldwell

I. Sherwood, C. J. 1. Bill of Exceptions. There is no bill of exceptions here that we can .regard as such, since the bill which is said to contain the evidence and other proceedings had at the trial, has not been signed by the judge nor otherwise authenticated. On a former occasion, when an alternative writ was asked and granted to compel Judge Redd to produce the original bill of exceptions in this case, or the copy thereof, file the same with the clerk of .the Ralls circuit court, and make an appropriate entry nunc pro tunc, etc., etc., it appeared from the return of the judge, which was not traversed, that he had signed a copy of the original bill of exceptions, but after the expiration of the sixty days agreed upon, and we refused to award a peremptory writ, remarking, among other things, in denying that writ, that: “It does not appear that the second bill might not have been prepared and tendered to the judge [627] within the authorized period, nor that the same was so tendered ; nor is there any fully satisfactory reason for the delay; and besides all that, the relator has not even caused the bill, though signed out of time, to be presented in term time for filing.” State ex rel. Caldwell v. Redd, 68 Mo. 106. "What has become of the bill of exceptions signed by the judge, does not appear, nor is it material for our present purpose to inquire. It is sufficient for us to say that what is termed the original bill of exceptions is not signed by the judge, and, therefore, cannot be regarded by us as preserving any of the matters said to be contained therein. II. 2.KEPLEyiN: crops, Since there is no bill of exceptions, we can only look to the record proper; and first to the petition: "We do not regard that as subject to criticism, because it alleges that part of the property sought to be replevied is “ six acres of corn on the stalk.” Whatever opinions were formerly entertained on this point, it seems quite well established now, both in England and in this country, that annual crops, crops raised by yearly labor and cultivation, or fructus industriales, are to be regarded as personal chattels, independent of and distinct from the land, capable of being sold by oral contract, and this without regard to whether the crops are growing or having matured, have ceased to derive any nutriment from the soil. 2 Schouler Bex*. Prop., 468, et seq. and cases cited; 2 Bingham Real Prop., 184, et seq. and cases cited; Benjamin on Sales, §§ 120, 121, 126, and cases cited III. 3.____. pleading. And even if it had been necessai’y to have declared that the corn had matui’ed, as claimed by defendant, in order to have shown it to be the subject of replevin, advantage of that defect should have been taken at an earlier stage of the proceedings, by mov [628] ing to have the petition “ made definite and certain.” R. S. 1879, §, 3529; Bliss on Code -Pleading, § 425, and cases cited. Besides, the code requires that: “ In the construction- of a pleading, for the purpose of determining its effect, its allegations shall he liberally construed, with a view to substantial justice between the parties.” R. S. 1879, § 3546. 4. Judicial Notice: crops. Moreover, that code also provides that “Matters of which judicial notice is taken, need not be stated in plead-ÍU°” K S- 1879> § 3548 i ;B1ÍSS C°de Plead-> § 177. Now the present action was instituted in December, 1874, and among those matters whereof courts will take judicial notice is that certain crops mature at certain seasons." Bliss Code Pleadings, § 188 ; Floyd v. Ricks, 14 Ark. 286; 1 Greenleaf Ev., § 5. There is no doubt, therefore, that the petition is good, in the particular referred to. IV. 5. bbpudvin: verdict The objection to the verdict, that it is general: “ We, the jury, find for the plaintiff,” and does not find the value of the Property, nor assess any damages for taking and detention, is not tenable in the circumstances of this case. The plaintiff had the property in possession, and the verdict says, rightfully. The fact that the jury did not go on, as they might have done, and assess damages in plaintiff’s favor, has certainly not operated to the injury of the defendant, and the plaintiff is not complaining on that score ; and we are expressly forbidden to reverse any judgment unless for “ errors materially affecting the merits of the action.” R. S. 1879, § 3775. This is not one of that sort. The judgment will, therefore, be affirmed. All concur.