Mitchell v. State

111 S.W. 806, 86 Ark. 486, 1908 Ark. LEXIS 447

• Court: Supreme Court of Arkansas
• Decided: June 8, 1908
• Status: Published

Opinion

McCulloch, J.

No exceptions were saved to the giving or refusal of instructions, but it is contended on behalf of appellant that the evidence does not sustain the verdict, and that the court erred in admitting evidence introduced by appellee. The cattle were seized under execution on a judgment in favor of Smith & Poe against appellant’s husband. She introduced evidence tending to show that, the cattle belonged to her, but we think there was sufficient evidence to warrant a finding by the jury that she had permitted her husband to hold the property out as his own. A finding of that fact called for a verdict against her claim for the property against the rights of creditors. Driggs v. Norwood, 50 Ark. 42; Roberts v. Bodman-Pettit Lumber Co, 84 Ark, 227.

Numerous objections are urged against the admission of testimony, but we find that in many instances exceptions were not properly saved. We need not discuss them all. One is that the court permitted a witness for appellees to testify that appellant’s husband offered to sell witness some of the cattle. This testimony was not incompetent, in connection with other evidence tending to show that appellant permitted her husband to use the property as his own.

Frank Nichols, deputy assessor, was permitted to testify that appellant’s son listed the property for taxation in the name of her husband, and he was also permitted to exhibit the list. Appellant objected to the introduction of the assessment list, but did not object to other testimony of the witness. In the motion for new trial she complained of the introduction of the other testimony, but not of the introduction of the assessment list. The objection was not, therefore, properly preserved.

Objection was made to the testimony of witness Dreher as to rumor and neighborhood reputation as to the ownership of the property. This testimony was incompetent, but appellant had previously introduced testimony of the same kind and can not complain. She first introduced the issue as to reputation in the neighborhood concérning the ownership of the cattle. The error was therefore an invited one. German-American Ins. Co. v. Brown, 75 Ark. 257.

The court limited the time for argument of counsel to fifteen minutes to the side, and this is assigned as error. This was a matter within the sound discretion of the court, and no abuse of the discretion is shown.

Judgment affirmed.