Lowe v. Hughes

29 Ind. 399

• Court: Indiana Supreme Court
• Decided: May 15, 1868
• Status: Published

Opinion

Gregory, C. J.

Hughes brought an action against Lowe and wife for the recovery of personal property. Trial by jury; verdict for the plaintiff; motion for a new trial overruled. The evidence is a part of the record.

On the trial, at the proper time, Lowe offered himself as a witness in his own behalf only, to prove that the. hogs (the property in controversy) bad never been in bis possession or under bis control; that be bad never claimed any right, title or interest in or to them; that tbe bogs were the property of Mrs. Lowe. Tbe wife offered herself as a witness in ¡her own behalf only, to prove that sbe was ■ tbe owner, in her own right, of tbe bogs; that they were detained by her as her own separate property; that no- demand bad ever been made on her for the possession of them; that sbe purchased them of one George Brown, and took care of and fed them all summer; that sbe knew them well, and knew their relative sizes, and that they were confined in a pen on her own individual premises.

T. J. Merrifield and W. H. Calkins, for appellants. S. I. Anthony, F. Church, S. F. Perkins, L. Jordan and S. E. Perkins, jr., for appellee.

Tbe offered evidence was rejected by tbe court, and this was one of tbe causes assigned for a new trial. Tbe evidencé ought to have been admitted. Albaugh et al. v. James, ante, p. 398. The court below' erred in overruling tbe motion for a new trial.

Tbe judgment is reversed, with costs, and tbe cause remanded, with directions to grant a new trial, and for further proceedings.