Barnett Brothers v. Porter

• Decision Date: 06 May 1918
• Docket Number: 348
• Parties: BARNETT BROTHERS v. PORTER
• Court: Arkansas Supreme Court

203 S.W. 842

134 Ark. 268

BARNETT BROTHERS v. PORTER

No. 348

Supreme Court of Arkansas

May 6, 1918

Appeal from Hot Spring Circuit Court; Scott Wood, Judge on Exchange affirmed.

Judgment affirmed.

Oscar Barnett, for appellants.

1. The instructions are erroneous, and were given orally when they should have been in writing as required by law and as requested by appellants. 81 S.W. 382; 115 Ark. 339; 34 Id. 257; 47 Id. 407; 51 Id. 177; 10 S.W. 257; 39 Id. 358.

2. It was error to entertain the answer and demurrer in justice of the peace court. 169 S.W. 959; 61 Ark. 605; 33 Id 1064; 55 Ark. 200; 94 Id. 54; 125 S.W. 1007.

3. Unreasonable and vexatious costs were allowed. 52 Ark. 103; 27 Id. 20; 12 S.W. 204. Improper credits were allowed.

4. A new trial should have been allowed and judgment for possession of the mare awarded. 127 S.W. 962; 94 Ark. 566 150 S.W. 693; 146 Id. 286.

5. The bill of exceptions was settled and signed by the presiding judge.

E. H. Vance, Jr., for appellee.

1. There were no objections to the oral instructions, and they were afterwards reduced to writing. They are not erroneous.

2. The value of the mare is not stated as required by Kirby's Dig., § 6854. Nor is it stated in the order of delivery. Ib., § 6856.

3. No proper bond was given. Ib., § 6857; 94 Ark. 456; 83 Id. 80. Nor was a verified statement of account made. Kirby's Dig., § 5415.

4. The mare was illegally appraised and sold.

5. The mortgage debt had been paid.

6. The bill of exceptions was not properly signed. 51 Ark. 278; 101 Id. 85; 109 Id. 123.

7. The verdict is sustained by the evidence, and should not be disturbed. 200 S.W. 790-3; 51 Ark. 459; 23 Id. 159.

OPINION

SMITH, J.

Barnett Bros. purchased a mortgage which Joe T. Porter had given E. M. Sligh on a mare and the crop of cotton and corn which Porter was growing on Sligh's farm. Barnett Bros. brought replevin for the mare for the purpose of foreclosing this mortgage. A number of motions were filed in the court of the justice of the peace, and the proceedings there resulted in an order dismissing the action and ordering the restoration of the mare to Porter. Notwithstanding that order, the possession of the mare was not restored and Barnett Bros. applied to the justice of the peace to appoint appraisers for the purpose of foreclosing the mortgage. The mare was appraised at $ 65 and was sold for $ 43. An appeal was prosecuted to the circuit court, where, upon a trial before a jury, a verdict was returned in favor of Porter for $ 65 as the value of the mare and for $ 50 as damages for the wrongful taking. The mortgage had been given to secure the payment of rent and certain goods and supplies to enable Porter to make a crop, and there was a controversy over the value of these supplies. The testimony was sharply conflicting as to the credits to which Porter was entitled. These credits included the proceeds of some cotton, the value of certain hay and peanuts, and certain labor performed by Porter, the value of all of which, according to his evidence, more than equaled the mortgage indebtedness and had, therefore, extinguished the mortgage indebtedness. It would serve no useful purpose to set out this testimony, as it was legally sufficient to have supported a finding either way, and the verdict of the jury has resolved conflicts in favor of Porter.

The instructions were given orally and appear to have been written out by the trial judge only when the bill of exceptions was presented to him for his approval, and it is now insisted that oral instructions should not have been given but that they should have been reduced to writing. It appears, however, that no such objection was made at the time of the trial, and it is too late now to raise that question. Appellant had the right, of course, to require the trial judge to reduce the instructions to writing, but this was a right which could be waived and will be held to have been waived because the objection now urged was not made in apt time. It is true appellant did request time to prepare certain written instructions, but it is not shown what these instructions would have contained nor does it appear that they were not covered by the instructions which were in fact given. The trial was evidently a tedious one, as appears from the number of motions found in the record. The record presents no questions of any legal difficulty, and the issues involved are almost entirely ones of fact, and it appears that these issues were fully covered by the oral instructions given by the court, and no abuse of discretion is shown in failing to give appellant an opportunity to prepare and submit written prayers for instructions.

In support of the motion for a new trial, which was filed on July 27, 1917, affidavits were filed showing the discovery of alleged new testimony. These affidavits were to the effect that Porter had testified at the trial that the mare's young colt had starved to death because it had been separated from its mother, when in fact Porter had sold the colt, and that the truth in regard thereto had become known only after the trial. And it is said that the jury took the loss of this colt into account in assessing the damages. Counter-affidavits...