Tillar v. Liebke

• Decision Date: 07 April 1906
• Citation: 95 S.W. 769,78 Ark. 324
• Parties: TILLAR v. LIEBKE
• Court: Arkansas Supreme Court

95 S.W. 769

78 Ark. 324

TILLAR v. LIEBKE

Supreme Court of Arkansas

April 7, 1906

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

STATEMENT BY THE COURT.

The appellant on 21st day of May, 1900, sued out an attachment against one G. W. Hargrove in the Desha Circuit Court for $ 1,012.16, amount due appellant for certain cottonwood, ash and oak timber which appellant had sold to Hargrove. The sheriff levied the attachment on 392 cottonwood logs, 336 ash logs, and 197 oak logs, lying in Cypress Creek. Appellee claimed the logs attached, made bond, and the logs were delivered by the sheriff into his possession. Appellee intervened, alleging that the logs at the time of the attachment were not the property of Hargrove, and that appellant had no lien thereon; that the oak and ash logs were, at the time of the issuance of the writ of attachment his property, and were still his property. Appellant answered the intervention, denying that appellee owned the logs or had possession of same when they were seized under the attachment, and alleged that the logs were the property of Hargrove. Hargrove made no defense. The court directed a verdict for the appellee.

Appellant requested the following instruction:

"The plaintiff, T. F. Tillar, sues the defendant, G. W. Hargrove in this action for the sum of $ 1,000 and $ 12 and six cents as purchase money due him for certain oak and ash timber sold to the defendant which has been cut and sawed into logs and prepared for rafting in Red Fork Bayou and in Cypress Creek of Desha County. Hargrove being so indebted to plaintiff, and neglecting to pay him, and having absconded, plaintiff sued out his writ of attachment, and on the 22d day of May, 1900, the same was levied upon the logs in controversy. C. F. Leibke intervenes in this action, and sets up a claim that he was the owner of the logs and in the possession of the same at the time the writ of attachment in this case was levied upon the logs.

"If the jury find from the evidence that neither the defendant, Hargrove, nor his authorized agent delivered the property in question to the intervener prior to said attachment, they will find for the plaintiff, T. F. Tillar, in the suit with six per cent interest on the sum sued for from the date of the institution of this suit.

"The question of ownership and possession of the property is a question of fact to be found by the jury, not only from the direct testimony, but from all of the evidence introduced in the case." This the court refused.

Judgment upon the verdict was rendered for appellee, and this appeal prosecuted.

Judgment affirmed.

Taylor & Jones, for appellant.

1. There was a conflict in the evidence, and it was error to instruct the jury peremptorily to find for the intervener.

2. A new trial should have been granted because of newly discovered evidence.

W. F. Coleman, for appellee.

1. There was a written contract for sale of the logs in controversy which had been duly assigned to appellee, the purchase money had been paid, and the logs delivered and in actual possession of appellee and his agents at the time of the attachment. This is uncontroverted. Where there is no evidence to sustain an issue of fact, the court declares the law, in so instructing the jury. 57 Ark. 461. It is error to leave a question to the jury where the evidence is all one way. 72 Ark. 440.

2. Appellant did not show the reasonable diligence required by statute to authorize a new trial on the ground of newly discovered evidence. Kirby's Digest, § 6215. He could have cross-examined the witness when his deposition was taken. Newly discovered evidence that goes only to impeach a witness is no ground for a new trial. 45 Ark. 328; 72 Ark. 404.

WOOD, J. HILL, C. J., not participating.

OPINION

WOOD, J., (after stating the facts.)

The...