130 Ky. 714
Court of Appeals of Kentucky.
Dec. 2, 1908.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"To be officially reported."
Action by Mary Gambrell, as administratrix of the estate of Frank Gambrell, against Frank Gambrell.
Judgment for plaintiff, and defendant appeals.

Appellee brought this action of claim and delivery (detinue) against appellant for the recovery of certain mules, cows, wagons, hogs, and other chattels which she alleged belonged to her intestate's estate. Each article was described and valued as required by the Code of Practice. The petition also alleged that certain of the articles named, and valued at $249, had been disposed of by appellant, so that they could not be found. She prayed judgment for a recovery of the articles on hand, and for $50 in damages for the detention of the property. Appellant denied appellee's ownership of the property, and put in issue its value and the damages sustained by her for its detention. The answer further pleaded that the intestate had in his lifetime sold the property to appellant, who claimed it by virtue of that sale. The result of the trial before a jury was a verdict for appellee for the sum of $300 in money.

Appellant within three days moved the trial court to grant him a new trial. The only ground then asserted that can be reviewed upon this appeal was the failure of the jury to designate the specific property to be returned to the plaintiff and its value, and the damages awarded, if any, for its detention. The motion for a new trial was overruled. Time was taken to prepare and file a bill of exceptions, but the bill was not filed. The appeal prosecuted from the judgment therefore presents but the single question whether the judgment is authorized, or might be authorized, by the pleadings. For, in the absence of a bill of exceptions and evidence, it will be presumed that the evidence and instructions authorized the verdict rendered, provided the state of pleadings do. Section 388, Civ. Code Prac., upon the manner of giving judgment, reads: "In an action for the possession of specific personal property, the plaintiff may have judgment for its delivery, if it can be had; and, if not, for its value and for damages for its detention. ***" The petition in this case contained this prayer for relief: "Wherefore the plaintiff, Mary Gambrell, prays judgment against the defendant for the recovery of said mule, wagon, and harness. She prays for judgment against him for $249 for the property he has heretofore disposed of--one mule, steer, and four hogs--for damages in the amount of $50 for the detention of said property, for her cost herein expended, and for all proper relief." We cannot know from this record what facts were developed at the trial. It may have been that the mule, wagon, and harness which were alleged to have been in the possession of the defendant when the petition was filed had been surrendered by him to the plaintiff at the time of the trial, in which event there would have been nothing left on that score for the jury but to assess the damages for the detention of the property; or it may have been that the evidence showed that plaintiff was not the owner or entitled to the possession of these articles. At the same time, it may have shown that the articles missing were the property of the plaintiff to which she was entitled to the immediate possession, and that the reasonable damages for their detention was $50, and their value as claimed. In the latter event, the jury's verdict should have been for $299. The error of $1 in assessing the amount in the verdict is too small to be noticed as a ground for reversal.

Copied into the record are what purports to be instructions presumably given on the trial. But these we cannot notice. They were not made part of the record by bill of exceptions or otherwise. Nor, in the absence of a bill of exceptions, can the appellate court inquire into the propriety or correctness of the instructions that may have been given. Beaven v. Phillips, 83 Ky. 88. If the fact was that the chattels described as on hand when the petition was filed were surrendered to the plaintiff before or at the time of the trial, or if the proof showed they were the property of the defendant, or not the property of the plaintiff, it was not necessary for the jury to find in their verdict concerning such articles, except that, in the instance next to the last supposed, it would have been better practice to have had the jury do so. But, as to the articles alleged in the petition to have been disposed of, it was needless for the jury to award them specifically to the plaintiff. They were gone. Code Civ. Prac. � 388, expressly allows the verdict and judgment to be for the value of the articles not to be had; and, as to the damages, they might without impropriety have been included in the general award of money. In such aspect there is no error in the form of the verdict. But, if the fact be that the evidence was such as to have warranted a deliverance by the jury as to the mule, wagon, and gears alleged to have been on hand, the failure of the jury to do so is a matter of complaint on the part of the plaintiff, as it does not appear that they were taken out of the defendant's custody by the writ. But, even if they had been taken from the defendant by the sheriff under the order of delivery, the defendant should have moved the court when the verdict was returned to have the jury make a more complete verdict. By waiting till the jury was dismissed, he could not avail himself of an error which was as much to the plaintiff's hurt as his in order to wrest from her a verdict otherwise unassailable. This record fails to show that appellant has been prejudiced in the slightest by the alleged error of which he complains.

Judgment affirmed.

Ky.App. 1908.
113 S.W. 885, 130 Ky. 714


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