Hays v. Ison

• Citation: 72 S.W. 733
• Parties: HAYS et al. v. ISON et al.
• Decision Date: 12 March 1903
• Court: Court of Appeals of Kentucky

72 S.W. 733

HAYS et al. v. ISON et al.

Court of Appeals of Kentucky.

March 12, 1903

Appeal from circuit court, Letcher county.

"Not to be officially reported."

Action by David Hays and another against D. D. Ison and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Hall &amp Baker, David Hays, W. F. Hall, and Ira Fields, for appellants.

J. G Forester, for appellees.

BARKER J.

The appellants, David Hays and Jonathan L. Holcomb, instituted this action in the Letcher circuit court against the appellees, D. D. Ison and Jesse Holcomb, to recover damages for a trespass alleged to have been committed by them on the property of appellants. The petition states: That David Hays and Jonathan L. Holcomb "at all times on and after the 6th day of October, 1899, were and are the owners of about two hundred poplar, ash, and cucumber trees standing on the land of John Holcomb. These lands are situated in Letcher county, Kentucky." Then follows a description by metes and bounds. "That the defendants, D. D. Ison and Jesse Holcomb, by themselves, agents, and employés, on the 9th day of October, 1899, and since plaintiffs' purchase of said timber, unlawfully, forcibly, and without right entered upon said land, and cut down 117 of said trees, to plaintiffs' damage in the sum of $500." The answer of appellees, who were defendants below, puts in issue the ownership of appellants to the trees in dispute, and also denies the trespass in manner and form as stated in the petition. By affirmative allegations it sets up title in appellee Jesse Holcomb to the land on which the trees are said to have been cut, and further pleads that the contract of purchase of the trees in question was champertous, because the land on which they stood was in the actual, adverse possession of Jesse Holcomb at the time it was made. The reply of appellants placed in issue all of the affirmative allegations of the answer. On trial of the case in the Letcher circuit court after appellants had introduced all of their evidence, appellees moved the court for a peremptory instruction to the jury to find a verdict in their favor, which was sustained. Appellants' motion for a new trial having been overruled, they have brought the case to this court on appeal.

The only question involved here is the correctness of the judgment of the court in sustaining the motion of appellees for a peremptory instruction. The bill of exceptions recites that all of the evidence introduced on the trial of the case is contained in the transcript of the notes of the official...