Breedlove v. Dennie , 2 Indian Terr. 606 ( 1899 )

Clayton, J.

The only errors complained of appear in the motion for a new trial. The first, second, and third paragraphs of the motion for new trial are merely formal, and will be considered in connection with other errors specified. The fourth, seventh, and eighth paragraphs relate to the admission of certain papers in evidence. The papers were all shown to be either the original, or certified copies of, documents on file in the office of probate judge, where the administration proceedings were pending, and were identified by him. There was no testimony to the contrary, and we think they were properly admitted. The fifth and sixth paragraphs of the motion for new trial are waived by counsel for appellants in their brief.

The ninth and tenth paragraphs relate to the admissibility of testimony showing that the defendant, George Nip-p'er, was acting as the agent of the interpleader in the transaction with the plaintiffs. The court admitted the testimony, but limited it to whatever effect it might have as contradicting the testimony of the interpleader. The record shows that on May 20, 18®9, the defendant, George Nipper, executed his promissory note to the plaintiffs for $11,500, payable one day after date. Partial payments were made by Nipper, and at the time of the suit there was about $4,000 still due. At the trial it was sought to be established by declarations of the interpleader that Nipper was acting as her agent in the transaction, and that the debt was really her own. This testimony was admitted by the court for the sole purpose of contradicting the interpleader. Should it have been admitted for the purpose of establishing an agency? We think not. Indeed, the testimony was prob~ ably not admissible for any purpose; the fact sought to be established by the proof not having been raised by the pleadings. The plaintiffs brought their suit against the defendant. They attached property, claimed by them to be the property of the defendant, for a debt which they alleged he owed them. If the property did not belong to the defendant, then the attachment was wrongfully levied; and, as Mrs. Dennie was not a party to the original suit, the question of agency was incompetent and immaterial.

Attachment, FnTerepi#adér. instruct,fon.r' fn|sCpf fa^a~

The eleventh and twelfth paragraphs refer to the charge, and will be considered together. The only error claimed by appellants in the charge given by the court is the following: “The sole question in this case for you to determine is whether the property in question is the property of the interpleader, who claims the same in her own right and as guardian of her three minor children; their interests being undivided.” There was testimony showing that the interpleader had been duly appointed as administratrix of the estate of William Walkley, and had made her final settlement as such, and that the property attached was held by her in her own right and as guardian for her minor chil-Iren. The issue was properly submitted to the jury. The jury found that she was entitled to the possession of the property attached, and she claimed it in her own right ind as administratrix and guardian.

Appellants allege error in the refusal of the court to jive eight instructions requested by them. The charge iven by the court substantially covered all the points raised >y the requested instructions.

The eleventh and last error is based on the refusal of he court to submit special findings to the jury. This is a atter entirely within the discretion <pf th§ trial court, and a refusal to do so is not réversible error. Railroad Co. vs Parkhurst, 36 Ark. 377. Let the judgment of the lower court be affirmed.

Thomas and Townsend, JJ., concur.