Brockman v. Buell , 16 Daly 90 ( 1890 )

Larremore, C. J.

This action was brought by the plaintiff to recover possession of one sorrel horse valued at $200, and one set of blankets and harness valued at $50. The answer is a general denial and demand for a bill of particulars. Issue was joined in the court below, and judgment rendered on December 27,1889, in favor of the plaintiff for $40, with costs. Plaintiff claims as mortgagee in possession of the property, and brings suit for the return thereof or its value. The mortgage in question was given by the defendant to the plaintiff to secure the sum of $800, one day after the date thereof. In such case no demand was necessary, it not being a mortgage payable on demand, and the commencement of the action constituted such demand. As the court below found in favor of the plaintiff, thereby establishing her right to recover the property or its value, it is somewhat difficult to understand the reason for the amount awarded. The testimony appears to be undisputed that the value of the horse was $200. Evidently the court did not take this into consideration in assessing the damages. We are asked to render a judgment in plaintiff’s favor for the value of the horse. This is not the province of an appellate court. The judgment appealed from must be reversed, and a new trial ordered, with costs to abide the event.