Mortenson v. Wagner , 95 Neb. 458 ( 1914 )

Sedgwick, J.

This action was begun in justice court of Sherman county, and was appealed to the district court. It involved less than $200. The petition alleged that the defendant took and carried away some of the hogs of the plaintiff without the plaintiff’s consent, and negligently and carelessly confined them in an “alleyway, with high board fences on all sides, which prevented the free circulation of air therein, and the same was wholly without shade and without water,” and failed to provide them with water or food or shade for about eight hours or more, and that because of this one of the hogs died and the others were injured. The plaintiff in the brief complains of errors of the court in refusing request for instructions, and in giving other instructions. There is no- bill of exceptions, and there are no errors assigned that we could consider under such circumstances. The plaintiff contends that his petition states two causes of action, one for trespass in taking the hogs, and the other for negligence in not caring for them. The trial court refused to consider that the plaintiff had a separate cause of action for trespass, and submitted the case upon the question of the defendant’s negligence in caring for the hogs. Even if two causes of action were alleged, if there was no evidence tending to show any other ground for recovery than the negligence of the defendant, the court was of course right in submitting only that question; and, as we do not have the evidence before us, we cannot say that there was any other issue fairly presented by the evidence than the issue submitted to the jury. Where the evidence is not preserved in a bill of exceptions, and there are no special findings, and the pleadings will support the judgment, it will not be reversed for supposed errors in instructing' the jury.

The judgment of the district court is

Affirmed.

Letton, Fawcett and Hamer, JJ., not sitting.