Watkins v. Green ( 1906 )

BLAND, P. J.

The suit is in replevin begun before a justice of the peace where the plaintiff recovered judgment. Defendant appealed to the circuit court of Pemiscot county, where on a trial anew, verdict and judgment Were for him. Neither the transcript nor abstract filed shows that a bill of exceptions was ever filed, hence there is nothing before us for review, except the record proper. The record shows that on the second day of March, 1905, the issues were submitted to a jury who, after hearing the evidence, returned into court the following verdict:

“We, the jury, find that the defendant, D. E. Green, was entitled to- the possession of the cows sued for a.t the. time of the institution of this suit. — O. F. Grimes, Foreman.”

After recording the verdict, the record of the judgm ent proceeds as follows:

“And thereupon comes the defendant, D. E. Green, and makes known to the court that he disclaims any right,. title, claim or interest in or to the cows involved in this lawsuit, except the sum of four dollars, due him as poundmaster of the city of Caruthersville, for the impounding of said stock. The premises considered, it is ordered and adjudged by the court that the defendant, D. E. Green, have and recover of and from the plaintiff, J. H. Watkins,- as principal, and J. O. Tinsley, security on the replevin bond, the possession of said cows, or in lieu thereof, the sum of four dollars the amount of defendant’s demand against the plaintiff for impounding of said cattle, together with the cost in and about this suit expended, both in this court, and in the court below, and hereof have execution therefor.”

Incorporated in the record, as certified by the clerk, is a motion to set aside the verdict and for new trial. But this motion cannot be considered for the reason a motion to set aside a verdict and for new trial is not a part of the record proper. Such motions can only be made a part of the record by being incorporated in the bill of exceptions. It nowhere appears in the record or abstract that defendant claimed a special interest in the property replevied; however, in the statement of the case (in the briefs of both parties) it is said that defendant, as poundmaster of the city of Caruthersville, impounded the cows and held them for the payment of charges. So far as the record discloses, this special claim or interest was not made known at the trial until after the verdict was rendered, when the court of its own motion, and on the bare statement of defendant, assessed the value of defendant’s special interest and rendered judgment therefor. The assessment of defendant’s interest in the cows should have been submitted to the jury. [R. S. 1899, sec. 3916.] The decision of this question by the court deprived plaintiff of one of his constitutional rights, to-wit, to have all the issues of fact in the case passed upon by the jury.

Wherefore, the judgment is reversed and the cause remanded.

All concur.