Hiatt v. Kinkaid

Decision Date17 April 1894
Citation40 Neb. 178,58 N.W. 700
PartiesHIATT v. KINKAID.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. To enable a party to present for review the alleged error of permitting to be filed or to be refiled an amended answer, the record must show an exception to have been taken to the order complained of by the party alleging error in respect thereto.

2. The objection that the verdict is not sustained by, or is contrary to, the weight of the evidence, or that it is contrary to law, cannot be considered upon a record in which such verdict does not appear.

3. An assignment in a petition in error that the trial court erred in refusing to give a group of instructions asked will be considered no further when it is found that the refusal of any one of such instructions was proper.

4. An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain that any one of such instructions was properly given.

Error to district court, Boone county; John R. Thompson, Judge.

Action by Paris R. Hiatt against M. P. Kinkaid for malicious prosecution and conversion of certain certified checks. Judgment for defendant. Plaintiff brings error. Affirmed.Charles Riley and P. R. Hiatt, for plaintiff in error.

M. K. Kinkaid, pro se.

RYAN, C.

Of a judgment in favor of the present defendant in error, the adverse party, upon error prosecuted to this court, obtained a reversal (Hiatt v. Kinkaid, 28 Neb. 721, 45 N. W. 236), and thereupon this cause was remanded for further proceedings. Subsequently an amended answer was filed, the court reserving the right to strike the same from the files,--a right which later was exercised. Soon afterwards, however, the court permitted the refiling of this amended answer, upon condition that the costs up to that time should be paid by the defendant. To this answer a reply was filed, and the cause was continued generally. In argument the counsel for plaintiff in error complained of this, but upon what ground does not from the record very clearly appear. Certain it is, however, that no exception was taken by the complaining party; a fact which, while it leaves in doubt the nature of the complaint made, is equally effective in excusing its review in this court.

The issues upon which this case was last tried were, in general terms, as follows: Paris R. Hiatt, the plaintiff, alleged that the defendant, M. P. Kinkaid, with the intent to injure plaintiff, and falsely, maliciously, and without any reasonable or probable cause, did charge plaintiff with the crime of larceny by a complaint filed before a justice of the peace of Holt county, Neb., in that, as said complaint stated, the said Paris R. Hiatt, on or about May 29, 1884, had stolen certain checks and drafts of said Kinkaid, payable to the order of Hiatt and Kinkaid, drawn by firms in Chicago, amounting to the aggregate sum of $3,627.19, and that said complaint alleged that the said drafts and checks were concealed on the person of said Hiatt. The plaintiff further alleged that said justice of the peace issued upon said complaint a warrant requiring the sheriff of Holt county, aforesaid, to diligently search the person of Paris R. Hiatt for said instruments, and to bring his person before said justice of the peace, or some other magistrate having jurisdiction of the case presented by said information, to be dealt with according to law, and that, pursuant to the mandate of said warrant, the sheriff of Holt county did search the person of said plaintiff, and took therefrom the aforesaid drafts and checks, and that, after said search, plaintiff was required to enter into a recognizance in the penal sum of $100 for his further appearance to answer the charge made in and by said complaint; that thereafter, as required, plaintiff did so appear, and was fully acquitted and discharged of the crime alleged; that the defendant took from plaintiffs' person and converted to his own use the aforesaid drafts and checks, which were the property of said plaintiff; and that, by reason of the foregoing facts, the plaintiff was damaged in the sum of $14,086.07, for which he prayed judgment. The amended answer first contained a general denial of the averments of the petition, except as thereafter such denial should be qualified or admitted by the answer itself. The defendant, in his amended answer, thereupon averred that he filed a complaint against plaintiff, and caused to be taken from plaintiff the checks described in plaintiff's petition; and, further, that at that time defendant was the owner thereof, and entitled to the immediate possession of the same; that, in the spring of 1883, defendant employed the plaintiff as his agent to buy cattle for feeding purposes, and to take care of and fatten said cattle at plaintiff's own expense; that, pursuant to said agreement, plaintiff got into his possession 76 head of cattle, the ownership and title to which were in defendant, to so take care of, feed, and fatten, and that plaintiff, thus being the custodian of defendant's cattle, without defendant's knowledge or permission or any authority so to do, wrongfully and fraudulently shipped to the city of Chicago, Ill., the said cattle, and there sold them, and received in payment therefor the checks described in plaintiff's petition, together with $41.12 in money, and that, soon after said sale, the plaintiff being in Holt county, Neb., defendant ratified the sale of said cattle by plaintiff, and thereby made the proceeds of the sale of said cattle his own; that thereupon defendant demanded of plaintiff a delivery of said proceeds to him, which plaintiff refused; and that plaintiff then and there feloniously converted the proceeds to his own use, and concealed the same from defendant, and denied having possession of the same, and that it was to discover said checks so converted by plaintiff that defendant made and filed the complaint for a search warrant, pursuant to which plaintiff was searched, and that two of said checks were found concealed upon plaintiff's person. And defendant further alleged that he filed no other complaint for the arrest of plaintiff, and did not cause his arrest in any other manner than as set forth; that he had reasonable and probable grounds for making said complaint, and acted without malice in so doing in said premises.

By his answer the defendant claimed compensation for the value of two missing steers, with which defendant had been intrusted by plaintiff, which value, the defendant alleged, was $75. The defendant also claimed the right to recover the sum of $41.12 in cash, received by plaintiff as part of the proceeds of the sale of said cattle in Chicago, and also the right to recover the value of feed furnished by him, which was used in fattening the aforesaid cattle, to the amount of $40. The defendant, in his amended answer, prayed for a judgment for the sum of $156.12, the aggregate amount of the above three items. By his reply the plaintiff denied each allegation in the answer, except as admitted, and alleged that in May, 1883, a contract was entered into by and between the plaintiff and the defendant for the purchase, care, keeping, and sale of certain cattle, which contract was evidenced by letters between the parties, which were set out in the reply. The first of these letters was written by Paris R. Hiatt to the defendant, in which occurred the following language: “I am ready for business as soon as you make out your papers authorizing me to buy as your agent, for such part of the profits as is named,--all profits above 35 per cent.,--steers kept one year and sold fat.” In the answer to this letter the defendant stated the terms defining the relation of the parties as follows: “My understanding now is that you buy, take care of, and fatten the cattle, pay all damages caused by cattle trespassing upon the property of others, and that I pay you for the same all profits to me over and above 35 per cent. net profits. With this understanding, you may begin to buy, and check out funds to pay for the same as you buy. Return this sheet to me by return mail, signifying your acceptance of these terms.” In his reply the plaintiff averred that he accepted the foregoing proposition of the defendant, and in pursuance of the terms thereof bought 76 head of steers, and on the 1st day of October, 1883, began to feed said cattle for the purpose of fattening them; that thereafter the plaintiff kept said cattle on full feed for the period of 240 days, to wit, until the 26th of May, 1884, on which date plaintiff sold 70 head of the same in Chicago, obtaining therefor three several drafts. (These drafts are described at length, and are those which were taken from the person of the plaintiff under the search warrant.) In the reply, the plaintiff admitted that, besides the drafts, he obtained the sum of $41.12 in cash as part of the proceeds of the sale of the aforesaid cattle. In the reply, the plaintiff further averred that he had expended for the purchase of cattle the sum of $2,445, and for feed the sum of $4,000; also, for labor, keeping and caring for said cattle, he had expended a further sum of $900. In all, plaintiff alleged in his reply, he had expended the sum of $7,345 in pursuance of the terms of the contract made as aforesaid. It was admitted in the reply that the defendant had furnished the plaintiff with the sum of $3,275, all of which, as plaintiff alleged, was expended by him in pursuance of the terms of the contract as aforesaid. He further alleged that he had paid to the defendant on the contract the sum of $100, and that on or about the 1st of June, 1884, defendant took and converted to his own use four of the steers then unsold, which were of the reasonable value of $200. It was further alleged by the plaintiff in his reply that on or about the 26th of February, 1884, one W. N. Hawkins recovered possession of one of the steers previously referred to in the reply,...

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5 cases
  • Meyer v. Union Bag & Paper Company
    • United States
    • Nebraska Supreme Court
    • June 6, 1894
    ... ... true, we will not further consider this assignment of error, ... agreeably to the rule of this court announced in Hiatt v ... Kinkaid, 40 Neb. 178, 58 N.W. 700, where it was held: ... "An assignment of error as to the giving en ... masse of certain instructions ... ...
  • Jenkins v. Mitchell
    • United States
    • Nebraska Supreme Court
    • May 15, 1894
    ... ...           ERROR ... from the district court of Box Butte county. Tried below ... before KINKAID, J ...           ... AFFIRMED ...          Thomas ... Darnall, Charles T. Jenkins, and M. B. Reese, for plaintiff ... in ... one of the instructions in either group so assigned en ... masse was correct, the assignment must be overruled as ... to that group. (Hiatt v. Kinkaid, 40 Neb. 178, 58 ... N.W. 700; McDonald v. Bowman, 40 Neb. 269, 58 N.W ...          Looking ... first at the instructions ... ...
  • Armann v. Buel
    • United States
    • Nebraska Supreme Court
    • June 5, 1894
    ... ... when considered together, are free from error, and this ... brings this assignment of error within the rule announced by ... this court in Hiatt v. Kinkaid, 40 Neb. 178, 58 N.W ... 700, where it was held: "An assignment of error as to ... the giving en masse of certain instructions will be ... ...
  • Haskell v. Valley Cnty.
    • United States
    • Nebraska Supreme Court
    • June 7, 1894
    ...and then come here from the ruling of the district court upon such motion. 6. Wilkinson v. Carter, 34 N. W. 351, 22 Neb. 186;Hiatt v. Kinkaid (Neb.) 58 N. W. 700;Jewett v. Osborne, 49 N. W. 774, 33 Neb. 24; and Vincent v. State, 56 N. W. 320, 37 Neb. 672,--followed and reaffirmed. Error to ......
  • Request a trial to view additional results

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