Mahoney v. Smith

170 N.W. 140, 41 S.D. 278, 1918 S.D. LEXIS 190

• Court: South Dakota Supreme Court
• Decided: December 31, 1918
• Docket: File No. 4417
• Status: Published

Opinion

GATES, J.

Action for the recovery of possession of 18 hogs restrained <by defendant under the Trespass by Animals Act (chapter 244, Raws 1907). The evidence tended to show that these hogs damaged .defendant’s cornfield on the day they were taken up, and that they and others of plaintiff’s hogs, or that they or others of plaintiff’s hogs, did' similar damage on two previous occasions. The trial court instructed the jury that the defendant was entitled to recover'damages for, and to have a lien “upon the hogs which he took into his possession for, any damage which the plaintiff’s hogs had done to his crops at that time, or within 60 days before the commencement of the action.” From a judgment awarding defendant $8 «damages, besides costs and expenses, plaintiff appeals, assigning error upon the instructions.

[1] There was evidence tending to show that the damage done upon the third occasion amounted to $6. The sole question argued by appellant is whether defendant’s lien extends to and' covers the damage done on the two previous occasions, thus presenting a controversy involving the sum of $2. “De minimis non curat lex.” C. 'C. § 2432. The judgment appealed from is affirmed. The time of this court ought not to be wasted in considering such trifling matters. We decline to determine the question of law presented.

[2] Furthermore, the assignments of. error merely quote the portions of the instructions excepted to, without pointing out wherein the instructions were erroneous. Such assignments merely assert error, but do not point out error. Hedlun v. Holy Terror Min. Co., 16 S. D. 261, 281, 92 N. W. 31, 36.