Young v. Stevens

• Decision Date: 22 April 1905
• Parties: YOUNG v. STEVENS
• Court: Arkansas Supreme Court

86 S.W. 1000

75 Ark. 181

YOUNG v. STEVENS

Supreme Court of Arkansas

April 22, 1905

Appeal from Sebastian Circuit Court, Fort Smith District, STYLES T ROWE, Judge.

Affirmed with remittiur.

STATEMENT BY THE COURT.

Appellant D. J. Young, having a judgment against the appellee, caused execution to be issued thereon, and levied upon a stock of liquors which appellee was selling at retail. The saloon in which appellee did business was taken, charge of under the execution and closed by the sheriff, and appellee brought this suit against appellants, Young and the sheriff, and the sureties on a bond of indemnity executed by Young to the sheriff.

The complaint alleged that the execution was void by reason of the fact that the judgment debt upon which the same was issued had been discharged in bankruptcy, and that the plaintiff had suffered damages on account of the wrongful levy of the execution, by being deprived of the profits of his said business and by injury to his credit.

The execution was, upon the trial of the cause in the circuit court, quashed by that court for the reason stated in the complaint, and the judgment of the court quashing it has been affirmed by this court (Young v. Stevenson, 73 Ark 480), and all controversy as to the validity of the execution is thereby eliminated. The testimony shows that appellee, at the time of the wrongful levy of the execution, was operating a retail liquor saloon in Fort Smith under a license issued by the county court to one Mulraney; that he had bought out the stock and business of Mulraney, and was attempting to conduct the business under a written, power of attorney signed by Mulraney appointing him as the latter's agent.

The court excluded the plaintiff's testimony tending to show that he had sustained loss of profits and injury to credit but permitted him to prove the following items of damage, viz: $ 60 rent of house while the sheriff was in possession, $ 50 wages paid to barkeeper, $ 15 wages paid to porter and $ 4 value of beer spoiled while in hands of the sheriff. The court, in its instruction given over the objection of appellants, submitted these elements of damages to the jury, and a verdict was returned in favor of the plaintiff for $ 129, covering these items of damage.

The defendants asked the court to give three separate instructions, all of which were refused, and they excepted generally.

Judgment affirmed.

Ira D. Oglesby, for appellants.

F. A. Youmans, for appellee.

Damages accruing after the institution of the suit may be recovered. 8 Am. & Eng. Enc. Law, 680; 2 Dill. 259. An exception must be made the ground of a motion for a new trial. 33 Ark. 107; 40 Ark. 114.

OPINION

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

Appellants insist that the judgment must be reversed because the verdict embraced elements of damages not claimed in the complaint. This would follow if they had objected to the introduction of evidence as to the added elements of damages, and saved their exceptions thereto. They did object, but the court admitted the evidence, and they failed to preserve their exception in the motion for new trial, and therefore are held to have waived it.

Their exception to the ruling of the court in refusing to give the three instructions asked en masse cannot be noticed, as two of them are not correct declarations of law. It has been many times held by this court that a general exception to several instructions will not be entertained on appeal if any of them be good. Dunnington v. Frick Co., 60 Ark. 250, 30 S.W. 212; Oxley Stave Co. v. Staggs, 59 Ark. 370, 27 S.W. 241; Fordyce v. Russell, 59 Ark. 312, 27 S.W. 82; Quertermous v. Hatfield, 54 Ark. 16, 14 S.W. 1096; Frauenthal v. Bridgeman, 50 Ark. 348, 7 S.W. 388. It is equally true that a general exception to the refusal to give several instructions, requested collectively, will not be considered here on appeal if any of them are bad. Teague v. Lindsey, 106 Ala. 266, 17 So. 538; Fleming v. Latham, 48 Kan. 773, 30 P. 166; Murphy v. McNulty, 145 Mass. 464, 14 N.E. 532; Wimbish v. Hamilton, 47 La.Ann. 246, 16 So. 856; Delude v. St. Paul City Ry. Co. 55 Minn. 63, 56 N.W. 461.

The pleadings must be considered as amended so as to conform to the evidence. Davis v. Goodman, 62 Ark 262, 35 S.W....