Southwick v. Berry ( 1845 )

Irvin, J.

This is an action of trespass brought by the plaintiff SoutTiwicTc, against the defendant, for taking and carrying away, etc., a horse.

The issue is made upon the plea of the general issue.

The plaintiff in error makes four assignments of error; the 2d and 3d of which will be first noticed. They are: “The district court erred in admitting the deposition of Henry A. Turner to be read in evidence to the jury;” “The court erred in permitting the deposition of John Mead to be read in evidence to the jury.”

To the reading of said, depositions objection is made, bnt no reasons are offered for the objection. In the absence of all specification of objections, the court will not stop to inquire what they might have been, but will presume the correctness of the ruling of the district court.

The first error assigned is, that “the district court of Iowa county erred in permitting John Eyan, a witness sworn and examined on the trial of the cause, to testify as to the proceedings by attachment in a certain cause before a justice of the peace, in which the said Berry was plaintiff, and Henry A. Turner was defendant, when there was no plea of justification in the cause, and there was no transcript nor original papers of the said proceedings before the said justice, produced before the court and jury on the trial of this cause.”

In the examination of this case, it appears that Eyan was the witness of the plaintiff himself, who, in order to-bring home to the defendant in this case, the trespass complained of, stated in substance, that he had been called on, as a constable, to serve a writ of attachment in favor of the defendant in this case, against one Henry A. Turner; that under the directions of the said Berry, he went to the stable of the said JSoutTiwicTc, and there levied on the horse in question. In his testimony he stated minutely and in detail, all the proceedings had in said attachment. To this evidence we find objection made by the plaintiff himself, as thus stated in the bill of exceptions: “In the course of the examination the plaintiff objected to the witness stating any thing of the writ of attachment and the subsequent legal proceedings thereon, on the ground that there was no plea of justification before the jury, and the record and papers of the case were not present, but the court overruled the objection, on the ground that the plaintiff had himself called the officer as a witness, to state what he did in relation to the alleged trespass. To this ruling of the district court, we see no good objection, and regard the ruling as correct.

The application for a new trial, for refusing which the 4th error is assigned, resting upon matters already noticed and disposed of, the court is of opinion that the judgment of the district court was correct, and that the same be affirmed, with costs.