Stone v. Kopka

• Decision Date: 12 February 1885
• Docket Number: 11,886
• Citation: 100 Ind. 458
• Parties: Stone et al. v. Kopka
• Court: Indiana Supreme Court

100 Ind. 458

Stone et al. v. Kopka

No. 11,886

Supreme Court of Indiana

February 12, 1885

From the Pulaski Circuit Court.

J. C Nye and J. Nye, for appellants.

N. L Agnew and -- Borders, for appellee.

OPINION

Franklin C.

Appellee sued appellants for permitting their cattle, running at large, to trespass upon appellee's premises. An issue was formed by a denial. There was a trial by a jury, a verdict returned for the plaintiff for $ 15, judgment was rendered upon the verdict, and a motion for a new trial was overruled.

The only error assigned is the overruling of the motion for a new trial. The reasons stated for a new trial are, the verdict is not sustained by the evidence, and is contrary to law, and error of the court in refusing to admit certain testimony.

The evidence sustains the verdict, and it is not contrary to law.

Appellants on the trial offered to prove by one Jones that the said cattle of defendants were not, at the time of said trespass "breachy or accustomed to do mischief, such as that charged in the complaint."

The issue was whether the cattle committed the trespass, and not whether they were breachy or accustomed to do mischief. All breachy stock has a beginning to be breachy, and the fact that this stock had not been breachy theretofore, furnished no evidence that they did not commit the breach alleged, as against undisputed evidence that they did commit the alleged trespass. Good character is no defence against positive, undisputed evidence of guilt. But while the first and second specifications of error are not insisted upon by appellants in their brief, under the third specification it is claimed that said evidence was admissible, for the reason that it tended to show that appellee's fence, where the cattle entered his premises, was bad, and not sufficient to turn stock. As to whether the fence was bad was an immaterial issue, not embraced in the pleadings.

There is nothing in the pleadings or evidence showing that the board of commissioners of said county had passed any order allowing such animals to run at large in that vicinity, as is provided for by the 2637th section, R. S. 1881. In the absence of such order, every owner is required to fence in his own stock, and he is not bound to fence out other stock. Indianapolis, etc., R. R. Co. v. Harter, 38 Ind. 557; Jeffersonville, etc., R. R. Co. v Huber, 42 Ind. 173; Jeffersonville, etc., R. R. Co. v. Adams, 43...