Witcher v. Watkins

• Decision Date: 26 October 1888
• Citation: 11 Colo. 548,19 P. 540
• Parties: WITCHER v. WATKINS.
• Court: Colorado Supreme Court

19 P. 540

11 Colo. 548

WITCHER v. WATKINS.

Supreme Court of Colorado

October 26, 1888

Commissioners' decision. Appeal from Chaffee county court.

Action of replevin, brought by Mary F. Watkins, as administratrix of the estate of L. E. Watkins, deceased, against T. Witcher. Verdict and judgment for plaintiff, and defendant appeals.

T M. S. Rhett and H. W. Hobson, for appellant.

G K. Hartenstine, for appellee.

STALLCUP C.

This was an action of replevin for eight head of cattle, brought by the appellee against the appellant before a justice of the peace.

Appeal from the judgment there was taken to the county court, where the case was tried to a jury, and verdict and judgment were given for appellee, and the case comes here by appeal therefrom. The instructions given and refused by the court were not incorporated in the bill of exceptions. Without being so incorporated, they do not become a part of the record, and error assigned thereon will not be considered here. Mining Co. v. Kirtley, 8 Colo. 108, 5 P. 649; Banks v. Hoyt, 18 P. 448, (opinion filed June 1 1888.) The bill of exceptions in this case shows nothing but the evidence; it shows not a single objection or exception to the admission or rejection of testimony. Is there anything in the record proper showing that the judgment was erroneous? It is argued that the verdict and judgment are not responsive to the issues. The verdict of the jury was as follows: 'We the jury, find the issues herein for the plaintiff, and assess her damages at the sum of two hundred and twenty-five dollars;' upon which the court gave judgment as follows: 'The jury by whom the issues joined in this cause was tried, having found the issues herein for the plaintiff by their verdict, and it appearing by the records and evidence that the cattle and property in controversy have never been replevied or delivered to the plaintiff, and said jury by their verdict having assessed the damages of plaintiff herein at the sum of two hundred and twenty-five dollars, therefore it is considered that said plaintiff do have and recover of and from said defendant the sum of two hundred and twenty-five dollars, and also said plaintiff's costs in this action, taxed at $375.16.' Section 2033, Gen. St., provides that in cases of replevin before justices of the peace, when the property has not been taken on the writ, the action may proceed as one for damages. There were, of course, no...