Howell v. Smith

¶1 Suit in detinue on mortgage by appellee against appellant.

¶2 A note and mortgage on certain personal property was executed by S. H. Howell to the City Bank & Trust Company, and transferred to J. A. Howell, who, after maturity, transferred the same to T. L. Smith. The latter brought this suit in detinue against S. H. Howell for recovery of the property, and said Howell, in addition to the general issue, pleaded payment to J. A. Howell of the mortgage.indebtedness, and also set-off. Upon these issues disputed questions of fact arose, presented by the evidence of the two brothers, which was in sharp conflict. The trial resulted in a judgment for the plaintiff, from which the defendant prosecutes this appeal.

¶3 [1-4] Charges 1 to 7, given at the plaintiff’s request, merely, in varying language, instructed the jury in substance that the burden of proof was upon the defendant to establish its plea of payment or plea of set-off, and were correctly given. Charge 7 for the plaintiff was but a form .which the jury were to use in case they found the issue in favor of the plaintiff, and, clearly, in giving this charge there was no error. That the affirmative charge was not due either party to the cause is so evident as to need no discussion. Charge 2, refused to the defendant, is meaningless as the same appears in this record; there evidently being an omission of several words. The court properly refused the same. Charge 3, refused to the defendant, does not find support in the evidence, as we read it, without regard to any other defects. Indeed, as to these charges the brief of counsel scarcely rises to an argument thereon.

¶4 [5, 6] The fact that counsel for plaintiff in a statement to the jury as to what he expected the evidence to show stated that the plaintiff’s money had gone into the case does not constitute reversible error. Under the heading “Sixth Proposition” counsel for appellant merely states that the court below allowed counsel for appellee to bring into the case matters concerning several transactions between the two Howells not involved in the issue, and this statement of counsel is, in substance, the same as the tenth assignment of error. It needs no discussion to disclose that so general an assignment of error presents nothing for consideration, and therefore needs no further treatment.

¶5 [7] Should it be conceded for the purpose of this case that it was competent to show J. A. Howell was under the influence of whisky much of the time during the transaction under consideration, yet there would be no reversible error in sustaining the ob *648 jection" which, constitutes the eleventh assignment of error for the reason that J. A. Howell himself admitted, when testifying in the cause, that during this time he “drank all he could get,” and that he “might have been drunk all the time during the fall.”

¶6 [8] A certain account showing an indebtedness from S. H. Howell to J. A. Howell was offered in evidence by the plaintiff, to which objection was made on the ground it was inadmissible because it had not b"een properly proven. J. A. Howell kept the account, testifying in the cause that he handed the same to his brother, and defendant added up the figures, and admitted it was correct. This objection therefore was not well taken.

¶7 [9] It appears that the statement of counsel for appellee in his closing argument to the jury, which constitutes the thirteenth and 'fourteenth assignments of error, was merely an answer to the argument of opposing . counsel, but, in addition to this, upon objection of defendant, the court excluded that portion of the statement which formed the basis of the objection, and no further reference was made thereto by defendant’s counsel. Here no reversible error is shown.

¶8 The brief for appellant in arguing the action of the court in overruling the motion for new trial appears to be rested solely upon illegal argument of opposing’ counsel, which has just been treated, and that assignment therefore needs no further consideration.

¶9 We have here considered the several questions argued by counsel, and finding’no reversible error, the judgment will be affirmed.

¶10 Affirmed.