Morgan v. Larsh , 1 Neb. 361 ( 1871 )

Lake, J.

The record in this case is unnecessarily cumbrous. At least three-fourths of it is of no possible use, and should have been left out. The issues tried in the District Court were formed by an amended petition, answer and reply. No errors are alleged before issue joined ; consequently the original petition, motion, demurrers and answer thereto, are useless for any conceivable purpose, and yet we find them all copied at full length here. So, too, of the record of the first trial. We have here the motion for a new trial which was granted, covering five or si,x pages, but no question is presented for the consideration of this court upon which it can have the least bearing. It is not only entirely useless, but does positive injury, and makes the examination of the case exceedingly tedious. I would suggest greater care in this respect, that the records of this court may not be burdened unreasonably.

A great many errors are alleged in the admissions and rejection of testimony. But we cannot regard them, for the reason that no ground of objection.is stated. Where an objection is made to the admission or rejection of testimony the reason should be given.

But there was no evidence in the case to -support a judgment against the defendants, Dickey and Hail. The record shows that Dickey, as probate judge, issued an order of attachment in a case brought before him by the defendant Larsh, of which he had jurisdiction. Hail, as sheriff', executed the order by taking the plaintiff’s horse, which is the subject of this action. Both Dickey and Hail acted in good faith, and if there was any fault anywhere it was on the part of Larsh alone, in sueing out the order.

The instruction given by the court to the jury ivas erroneous. The jury were told that “ if the evidence satisfied them that the defendants took the plaintiff’s horse, they should find for the plaintiff the value of the horse as shown by the evidence.” Now this implied that there was evidence before the jury, from which they might find that the ’ defendants, Dickey and Hail, had wrongfully taken and converted the plaintiff’s horse.' But there was no testimony which even tended to prove this fact. Again, the defendants, Dickey and Hail, requested the court to instruct the jury in substance that there was no evidence which would warrant a verdict against them. This was refused, and in this refusal there was error prejudicial to the defendants, Dickey and Hail. The instruction should have been given as prayed. For these reasons the judgment of the District Court must be reversed, and a trial de novo awarded.

Reversed and remanded.