Creighton v. Haythorn
| Decision Date | 05 November 1896 |
| Docket Number | 6875 |
| Citation | 68 N.W. 934,49 Neb. 526 |
| Parties | JOHN D. CREIGHTON v. HARRY HAYTHORN ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Keith county. Tried below before NEVILLE, J.
REVERSED.
John R Brotherton and McClanahan & Halligan, for plaintiff in error.
Grimes & Gilcox, F. Q. Feltz, and Albert Muldoon, contra.
This was an action of replevin in the district court for Keith county by the plaintiff in error, John D. Creighton, to recover certain horses and colts then in the possession of the defendant therein named, Harry Haythorn and which were, as charged, unlawfully detained by the latter. The controversy appears to have been settled to the mutual satisfaction of the parties named and a written stipulation executed and filed whereby the plaintiff agreed to dismiss said action at his own cost. Subsequently, however, and before a final disposition of the cause, John W. Hughbank and Lucy Hughbank were, by order of court, permitted to intervene for the purpose of asserting a right to the possession of said property adverse to the claims of both plaintiff and defendant, and upon the issues tendered by said intervenors the cause was prosecuted to judgment in their favor for the return of the property and the sum of $ 43 damages for the unlawful detention thereof, and which has by the plaintiff been removed into this court for review.
The claim of the intervenors rests upon the fact, as alleged, that the live stock, which is the subject of the controversy, was taken up by them while trespassing upon their cultivated lands, and by them placed in the possession of the defendant Haythorn, to be safely kept and cared for under their direction. Intervenors also charge that they had, previous to the commencement of this action, fully complied with the provisions of the statute, in order to preserve their lien upon said stock for the damage done to their growing crops, which, together with the cost of impounding, is laid at the sum of $ 200.
The allegations of error which relate to the giving and refusing of instructions may be dismissed with the observation that the record discloses no exception to those given, while those refused are grouped in a single assignment of the motion for a new trial. It is not seriously contended that the court erred in refusing each of the instructions requested, and there was certainly no error in the refusal of paragraph No. 1, since the proposition therein stated had been given in substantially the same language in the charge of the court. An assignment of error directed generally against a group of instructions will, in accordance with the repeated decisions of this court, be considered no further than to ascertain that any one thereof was rightly given or rightly refused.
A more serious question is presented by the first assignment of the motion for a new trial and also of the petition in error viz. that the verdict of the jury is contrary to law. The grounds upon which intervenors were allowed to contest the plaintiff's claim was that they were...
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