Day v. Ferguson

• Decision Date: 18 February 1905
• Citation: 85 S.W. 771,74 Ark. 298
• Parties: DAY v. FERGUSON
• Court: Arkansas Supreme Court

85 S.W. 771

74 Ark. 298

DAY v. FERGUSON

Supreme Court of Arkansas

February 18, 1905

Appeal from Clay Circuit Court, Western District, FELIX G. TAYLOR Judge.

Affirmed.

Ed Jacobs held judgment against C. T. & J. L. Jones, under which he procured successive executions to be levied upon certain logs and pilings as their property. As often as the sheriff made levies, replevin suits were instituted by the appellees Ferguson & Wheeler, who claimed the logs, against D. P. Day the officer who made the levies.

It is conceded that the logs in controversy were in the hands of Ferguson & Wheeler when levied on. The evidence was to the effect that it belonged to them. There was no evidence to prove that it belonged to C. T. or J. L. Jones. The testimony as to the piling, which was worth $ 18, is set forth in the opinion on rehearing. Plaintiffs had judgment below, for both logs and piling, from which defendant appealed.

In his abstract appellant says: "Only two questions are raised in this court: First, was there evidence to support the verdict of the jury; second, that the verdict of the jury was influenced and brought about by the improper argument to the jury by the attorney for the appellees." As to the latter point, the facts are stated in the opinion.

Judgment affirmed.

G. B. Oliver, for appellant.

The closing remarks of appellees' attorney were improper. 65 Ark. 619.

HILL, C. J. WOOD, J., dissents.

OPINION

HILL, C. J.

There are but two questions presented in this case--one as to the sufficiency of the evidence, and the other as to the remarks of counsel for appellee in his closing argument.

The court is of opinion that the evidence is sufficient to sustain the verdict, and, the instructions not being questioned, the judgment must be affirmed, unless the remarks of counsel call for a reversal.

The record shows the argument and proceedings thereon as follows: "Who is this fellow, Ed. Jacobs? He is nothing but a Jew down here at Knoble, without any conscience, and are you going to take the property levied on, which Ferguson & Day have paid their good money for, and turn it to such a man as that? Nobody ever heard of a Jew having a conscience. They would take the last thing you had." Whereupon the defendant objected to the argument of the said Taylor, and the court instructed him to desist from such argument, and instructed the jury that it did not make any difference who the defendant was, that he had the same rights in court that plaintiffs or any one else had, and told them to disregard the argument of plaintiffs' attorney to the contrary. Whereupon the said Taylor proceeded with his argument, and again in a short time reverted to the statement that the said Jacobs was a Jew, to which defendant again objected, whereupon plaintiff's attorney desisted from such argument." In the instructions to the jury the court specifically instructed as to this argument. The record reads as follows: "The court also again instructed the jury to disregard the argument of attorney Taylor, which was objected to, and stated that it was entirely improper, and such argument should never be indulged in by any lawyer."

In the case of Kansas City Southern Railway Company v Murphy, ante, p. 256, the two classes of cases where reversal is had for prejudicial remarks are discussed. It is clear that no reversal...