Nafe v. Leiter
| Decision Date | 25 September 1885 |
| Docket Number | 12,077 |
| Citation | 2 N.E. 317,103 Ind. 138 |
| Parties | Nafe v. Leiter |
| Court | Indiana Supreme Court |
From the Fulton Circuit Court.
The judgment is affirmed, with costs.
J. W Rickel and E. Myers, for appellant.
M. L Essick, G. W. Holman and O. F. Montgomery, for appellee.
On, and previous to, the 27th day of May, 1884, Jacob Leiter and James H. Nafe were the owners of, and resided upon, adjoining farms in Rochester township of Fulton county, in this State. Leiter was, at the time, the owner of a lot of hogs, consisting of five sows and forty-five shoats. On the morning of the day named, Leiter fed his hogs in an open lot on his farm, which communicated with adjoining lands. About ten o'clock of the same day, Nafe found the hogs in his pasture, which constituted a partially inclosed part of his farm, and took them up and impounded them in a lot upon his farm. On the same afternoon, Nafe sent a written notice of the taking up and impounding of the hogs to Leiter, who, before the close of the day, went to Nafe's house, inquired of Nafe the amount of compensation he required, and demanded the possession of the hogs. Nafe answered evasively as to the matter of compensation, and refused to surrender the property. The board of commissioners of Fulton county had previously ordered that only cows, heifers, steers, ewes and wethers should be allowed to run at large in Rochester township. Leiter thereupon commenced this action for the recovery of the possession of the hogs. At the proper time, Nafe entered a special appearance to the action, and moved to quash the writ, upon the ground that it did not, in at least one substantial respect, comply with the provisions of section 1270, R. S. 1881, but his motion was not sustained. This was followed by a verdict and judgment in favor of Leiter.
The objections made here to the proceedings below are only such as were assigned as causes for a new trial, and upon which, in this way, questions were intended to be reserved.
The first cause assigned for a new trial was the refusal of the circuit court to quash the writ, and a carefully prepared argument has been submitted in support of the claim that the writ ought to have been quashed. But this refusal of the circuit court was entirely preliminary to, and disconnected with, the trial. The motion to quash the writ was as much a separate and distinct proceeding as a demurrer to the complaint would have been, or as is a motion to quash an indictment in a criminal prosecution. Hence, to raise any question in this court upon the overruling of the motion to quash the writ, error ought to have been directly assigned upon that proceeding independently of anything connected with the trial; there is, consequently, no question before us upon the sufficiency of the writ.
The circuit court, upon its own motion, gave to the jury seven instructions in writing. The concluding part of the fifth instruction was as follows: (section 2639, R. S. 1881), "if it should happen to break its owner's inclosure without his knowledge or consent."
The sixth instruction reiterated, substantially, the same doctrine, but in a more elaborate and somewhat modified form.
The seventh instruction told the jury: "If you find that the defendant complied with the law in taking up and impounding the hogs in dispute, then the plaintiff, immediately on being notified that they had been taken up and impounded, had the right to redeem them immediately after receiving notice that they had been taken up and impounded, and to take into his possession...
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