Cox v. Cooley

• Decision Date: 14 December 1908
• Parties: COX v. COOLEY.
• Court: Arkansas Supreme Court

Page 929

114 S.W. 929

COX v. COOLEY.

Supreme Court of Arkansas.

December 14, 1908.

Appeal from Circuit Court, White County; Hance N. Hutton, Judge.

Action by Frank Cox against H. Cooley. Judgment for defendant. Plaintiff appeals. Affirmed.

H. P. Cleveland and Rachels & Johnston, for appellant.

HILL, C. J.

This is one of those unfortunate cases where a bitter controversy has arisen between neighbors over the ownership of a trivial amount of personal property. It is a replevin suit for the recovery of five pigs. There have been two trials in the circuit court, with opposite verdicts. The plaintiff recovered in the first instance, and his verdict was set aside by the trial judge, and this is an appeal from a verdict in favor of the defendant. The costs as taxed on the transcript amount to $331.40. The record is full of irreconcilable conflicts in the testimony, of impeachment of witnesses by attacks of their character, and of contradictory statements. It is difficult to find a sadder chapter in the annals of the people. There is ample evidence to sustain a verdict for either side, and it was just a question which side of the controversy would be believed by the jury. The appeal must be fruitless, for there is nothing properly brought before the court for review.

Appellant questions two instructions given orally by the court, both as to their correctness and as to their being given orally, and to the refusal of the court to give three instructions which he alleges were requested, and also alleges that unwarranted and prejudicial arguments were made by the counsel for appellee. The record shows that the court gave oral instructions, which were set out, but fails to show any request that they be reduced to writing or exceptions to the instructions. This defect is attempted to be supplied by allegations in the motion for new trial. It is uncertain, even from these allegations, whether exception was taken to the court giving instructions orally or whether to the correctness of the instructions or both. The omission to have the exceptions noted in the record is sought to be supplied by an affidavit of the plaintiff and his attorneys verifying the motion for new trial, in which affidavit they state that the "counsel for plaintiff excepted to the giving of such oral instructions, and asked that his exceptions be noted of record with the statement that he believed that said instructions were prejudicial and erroneous"; and this was supported by the affidavit of a juror, who states that the counsel for plaintiff entered objections to the court giving its oral instructions by the court, and asked that his exceptions be noted upon the record. It is not the office of a motion for new trial to present such matters. Section 6225, Kirby's Dig., provides that, where a decision is not entered on the record or the grounds of objection do not sufficiently appear in the entry, the party excepting must reduce his exception to writing and present it to the judge for his allowance and signature. If true, it shall be the duty of the judge to allow and sign it. If the writing is not true, the judge shall correct it or suggest the correction to be made, and, when corrected, sign it. Section 6226 provides that, if the party excepting is not satisfied with the correction, upon his procuring the signatures of two bystanders attesting the truth of his exception as by him prepared, the same shall be filed as a part of the record. But the truth of the exception thus made may be...