Hanscom v. Burmood
| Decision Date | 26 October 1892 |
| Citation | 53 N.W. 371,35 Neb. 504 |
| Parties | ISAAC C. HANSCOM v. PETER BURMOOD |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hall county. Tried below before HARRISON, J.
AFFIRMED.
Thompson Bros., for plaintiff in error.
Thummel & Platt, contra.
This was an action in replevin, brought by Peter Burmood to recover the possession of eight calves. The property was taken under the writ of replevin by the sheriff, and the possession thereof delivered to the defendant in error. On the trial the jury returned a verdict finding that the plaintiff at the commencement of the action was the owner and entitled to the possession of the calves; that they were of the value of $ 75, and that the damages for the unlawful detention were $ 2.50. A motion for a new trial was made by plaintiff in error, which was denied by the court, and judgment was rendered in accordance with the verdict.
The proofs show that at and prior to the commencement of the suit the parties resided on adjoining farms, and that defendant in error was the owner of the stock in question. The plaintiff in error introduced evidence tending to show that the calves were trespassing upon his cultivated lands. The evidence on the part of the defendant in error is to the effect that the calves escaped from his premises and went upon the highway, and were driven from the public road by plaintiff in error onto his farm, where they were placed in an enclosure; that as soon as the owner learned of their whereabouts he went to the residence of plaintiff in error for the purpose of bringing them home, and asked him to state the amount of damages they had committed, which he declined to do; that thereupon plaintiff in error in an angry and violent manner attacked defendant in error with a club, and drove him from his premises and refused to allow him to take away the calves. Subsequently this action was commenced.
The evidence was sufficient to authorize the jury in finding that the calves were not trespassing upon the premises of plaintiff in error, and that he wrongfully detained the same.
The main controversy in the court below was whether the calves at the time they were taken up, were feeding in defendant's corn field. On the trial plaintiff called and examined as a witness one Eberhart Kurz, who testified that within a day or two after the stock had been taken up, at the request of Mr. Burmood, he made a thorough examination of Mr. Hanscom's premises and was unable to find any tracks in the field of corn where it was alleged the calves had been trespassing. Counsel for defendant then offered to prove by Mr. Hanscom that Eberhart Kurz had testified, on the trial of the cause in the justice court, that he was in the corn field and saw the calves' tracks there at the time he made the examination of the premises referred to in his testimony, which offer was objected to by the attorney for defendant in error, and the objection was sustained by the court. This ruling is now assigned for error. The excluded testimony was offered for the purpose of impeachment, and the proper foundation for its introduction had not been laid. The witness Kurz was not asked, when on the witness stand,...
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