This appeal is from a judgment rendered in favor of appellee, plaintiff in the court below, on October 10, 1921.
The suit was brought by Mrs. Della Jackson, as plaintiff, against S.J. Walls and I.B. Hyde, to recover possession of a cow. The case was in detinue, and it was the contention of plaintiff that at the time this suit was brought the defendants were in possession of the cow described in the complaint, and that the cow was her own property, and that defendants were wrongfully withholding the possession of the cow from her.
Defendants admitted possession of the cow in question at the time suit was brought, but denied the right of plaintiff to the possession thereof, and contended that the cow belonged to defendants, and claimed the right to the possession thereof under and by virtue of a certain mortgage executed to defendant Walls by one John Jackson, the husband of plaintiff, which said mortgage had been foreclosed.
These respective contentions constituted an issue of fact, and, as aptly stated by the trial judge in his charge to the jury, formed the simple issue as to whether or not it was this plaintiff's cow when she brought the suit, or was it the cow of the husband when it was mortgaged by him to Walls.
The first and second assignments of error relate to the ruling of the court upon the testimony. We are not prepared to put the court in error in this connection, as the note inquired about is not set out in the record, and there is nothing to show that it was ever read to the jury, nor sent out with them when they retired to enter upon their deliberations. The record discloses that the defendant merely offered to introduce the note in evidence, but nothing to show, as above stated, that it was actually put in evidence.
Assignments of error 3 and 4 relate to the refusal of charges 1 and 2 to defendant. An examination of the record discloses that these charges are abstract, and were properly refused. In the first place, the record does not contain any mortgage from Jackson to Walls, and there is no evidence to the effect or tending to show that plaintiff authorized her husband to mortgage the cow to Walls.
Assignments of error 5 and 7 relate to the court's refusal to give the general affirmative charge requested by defendant. It is so clearly evident that these charges were properly refused under the testimony in this case the question needs no discussion whatever.
Assignments of error 8 and 9 relate to the ruling of the court upon the question of new trial. This matter is not before us for consideration; the appeal as hereinabove stated being from the judgment entered in the original suit on October 10, 1921, as clearly appears from the record.
Affirmed.