The complaint in this case contained two counts; the first being in detinue for the recovery of two cows, and the second in trover for the conversion of the cows.
Plaintiff, appellant, was the wife of one Palma Jones and claimed the cows by gift from her husband.
The defendant claims title to the cows under a mortgage which had been executed by Palma Jones to Moncrief. The testimony shows that at the time of the execution of the mortgage Palma Jones was in possession of the cows. There was verdict and judgment for the defendant, and plaintiff has appealed to this court, and assigns as error the refusal of the court to give charges requested in writing by plaintiff, the giving of a charge requested in writing by defendant, the oral charge of the court, and the rulings of the court upon the testimony.
There was no error in refusing to give charges numbered 1, 2, and 3 requested in writing by plaintiff. These charges were the affirmative charge as to the complaint as a whole, and as to each count of the complaint. The evidence as to the ownership of the cows was in conflict, and there was sufficient evidence to justify a finding by the jury that the title to the cows was in Palma Jones at the time he executed the mortgage to Moncrief under which defendant claimed title, having purchased the cows from Moncrief. Where there is a conflict in the evidence the affirmative charge should not be given.
There was no error in refusing to give charge 4 requested in writing by the plaintiff. This charge was misleading in that it stated that "you must find that the mortgage purported to be given by Palma Jones to Lonnie Moncrief was properly executed." No question as to the execution of the mortgage was raised at the time it was offered in evidence; besides, the court's oral charge set forth the fact that the jury must find that the title was in Palma Jones at the time he executed the mortgage to Moncrief.
The charge given at the request of the defendant was abstract and could have been properly refused. There was no evidence in the record that Moncrief swore before the grand jury that the cattle were not the property of Palma Jones. However, no injury could have resulted to plaintiff by the giving of this charge.
There was no exception reserved to the court's oral charge, and therefore it cannot be reviewed. However, we have examined the oral charge, and find no error of a prejudicial nature.
There was no exception reserved to the ruling of the court in sustaining the objection to the question propounded to the witness Mrs. L. Moncrief, which is made the seventh assignment of error; hence this ruling of the court is not properly presented for review.
There being no error in the record, the judgment of the circuit court is affirmed.
Affirmed. *Page 276