McDONALD v. RAMZY

McDONALD v. RAMZY
1926 OK 388
245 P. 997
117 Okla. 203
Case Number: 16544
Decided: 04/20/1926
Supreme Court of Oklahoma

McDONALD
v.
RAMZY.

¶0 In an action involving damages to growing crops caused by stock trespassing upon same, it is permissible to allege and prove trespasses committed by stock belonging to the owner of the stock distrained at times other than the time on which the stock was distrained.

E. L. Kirby and T. M. Markley, both of Wagoner, for plaintiff in error.
P. E. Reed, of Wagoner, for defendant in error.

JONES, C.

¶1 This appeal is from a judgment of the district court of Wagoner county, Okl., wherein the appellee, J. W. Ramzy, procured a judgment against the appellant, C. C. McDonald, for the possession of nine head of cattle or damages in the sum of $100, in the event possession of the cattle was not obtained. This litigation grows out of an action on the part of the appellee, Ramzy, in distraining nine head of cattle belonging to the appellant, McDonald, found trespassing upon Ramzy's premises and upon his crop of cotton on the 3d day of November, 1923. Distraint proceedings were commenced as provided by law, and the cattle had been taken in charge by the defendant, Ramzy, and on the same day the plaintiff, McDonald, instituted the replevin action, and replevined same as the owner thereof. Thereafter the defendant, Ramzy, filed his answer setting up the fact that he had distrained the cattle because they were trespassing upon his crop, and, further answering by cross-petition, averred that he had been damaged by reason of the trespassing of the cattle in the sum of $200, and upon the issues thus joined the cause was submitted to the court and jury, and an alternative judgment rendered for the possession of the cattle, or damages in the sum of $100.

¶2 The only assignment of error urged in this court by appellant is that-

"Said court erred in admitting incompetent, irrelevant, and immaterial testimony and evidence into the record, over the objections and exceptions of the plaintiff."