Filley v. Norton

• Decision Date: 29 April 1885
• Parties: ELIJAH FILLEY, PLAINTIFF IN ERROR, v. NOAH NORTON ET AL., DEFENDANTS IN ERROR
• Court: Nebraska Supreme Court

23 N.W. 347

17 Neb. 472

ELIJAH FILLEY, PLAINTIFF IN ERROR, v. NOAH NORTON ET AL., DEFENDANTS IN ERROR

Supreme Court of Nebraska

April 29, 1885

ERROR to the district court for Gage county. Tried below before BROADY, J.

AFFIRMED.

Hazlett & Bates (L. W. Colby with them), for plaintiff in error.

Hardy & McCandless, for defendants in error.

OPINION

COBB CH. J.

This was an action of replevin commenced before a justice of the peace, and taken by appeal to the district court. The cause was tried to a jury with verdict for the plaintiff. A motion for a new trial was overruled and the cause brought to this court by defendant on error.

Plaintiff in error made several points in his petition in error as well as in his motion for a new trial, but only one is discussed in his brief. Accordingly our examination of the case will be confined to that, and the others deemed as abandoned.

The only point urged in the brief of plaintiff in error is "That the court erred in overruling the motion for a new trial." This point can in no possible view be maintained except on the ground that the evidence was insufficient to sustain the verdict.

The property replevied consisted of two calves about six months old, of the value of twenty-five dollars. It was pretty much entirely a question of identity. The plaintiffs and their witnesses swore with ordinary unanimity that the calves were the product of cows belonging to them on the farm of Noah Norton, which was being carried on, together with the stock, by Milo Norton, his son; that one of the calves had been raised entirely and the other partly by hand; that they had, for nearly the whole season, run about the house, and been daily fed and cared for by the sons and daughters of the senior plaintiff; that they were of peculiar color and marks, so as to attract attention both by the family, herdsmen, hired hands, and others; that early in the winter they became mixed with the herd of the defendant, with which they were driven to defendant's premises; that plaintiff went there for them, and afterwards, for more satisfactory identification, took the little girls there to pick them out of defendant's herd, which they did, but the defendant declining to give them up the suit was brought.

There was also a large amount of conflicting testimony on the part of the defendant. A number of witnesses on his part, nearly equal in number to those of the plaintiff, testified to one of the calves having been calved and raised on the place of the defendant, and the other one having been bought by him with a cow from one...