Pratt v. Welcome

TAGGART, J.

This is an action of claim and delivery to recover possession of a mare alleged in the complaint to be of the value of $500 and for $200 damages.

Judgment was for plaintiff for $1 damages, for the possession of the mare, or in case delivery cannot be had, for her value, fixed at $300, and for costs of suit. Defendant appeals from the judgment, and from an order denying his motion for a new trial.

The errors relied upon for a reversal of the judgment appear to be such only as properly should be considered on the appeal from the order denying the motion for a new trial: Insufficiency of the evidence to justify the decision of the court, that the decision is against law, and errors of law occurring at the trial. There are no exceptions presented to any rulings of the court which come under the latter head.

It is contended that there is no evidence to sustain the finding that the value of the mare is $300, and, therefore, the superior court was without jurisdiction to try the cause because the “value of the property in controversy” does not amount to $300. (Const., art. VI, sec. 5.) We do not agree with appellant’s view either of the law or the fact. The action was begun May 31, 1905, and the witness Williams testified that in the month of May, 1905, the mare was worth $500. The witnesses of defendant valued her at only $200. While it is true that no witness stated her value at exactly $300, the court is not bound to find in the precise figures stated by any witness, but is at liberty to estimate and fix such a valuation on the property as all the evidence taken together

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warrants. No objection was made to the competency of the witness Williams to testify to the value of the mare at the time his testimony was given. This objection was made for the first time on the hearing of the motion for a new trial, and no objection or exception on this ground appearing in the record, there was nothing upon which that court could act in this connection. Objections to a witness’ qualification to testify on matters of opinion must be made at the time the testimony is offered, or they will not support a motion for a new trial, or be considered by an appellate court. The reasons for the rule have been stated too often to need repetition.