#### Hester v. Finigan.

5-461

269 S. W. 2d 698

Opinion delivered June 28, 1954.

*928 F. C. Crow and Weisenberger & Wilson, for appellant.

W. 8. Atkins and Louis E. Crain, for appellee.

Sam Robinson, J.

Appellee H. H. Finigan filed this suit against appellant Bob Hester to replevy two yearlings. The cause was filed in the municipal court where there was a judgment for Finigan. Hester appealed to the circuit court where the cause was tried before a jury and again there was a judgment for Finigan. On appeal to this court appellant argues there is no substantial evidence to sustain the verdict.

It was shown that Finigan had his cattle in a pasture; that two of them disappeared; that Hester had gone to the pasture without notifying Finigan and obtained two head of cattle. Hester claimed that the two cattle he obtained from the pasture belonged to him, hut on the other hand Mrs. J. C. Finigan testified that there were no cattle in the pasture other than those belonging* to appellee H. II. Finigan. Cecil Green testified that the two cattle involved in this litigation did not belong to Hester. All of this testimony considered together was sufficient to make a question for the jury as to whether the cattle removed from the pasture belonged to Hester or to Finigan, and the jury found that they belonged to Finigan.

Hester stoutly contends that the cattle he obtained from the pasture were his own, and that at no time did he have in his possession the two cattle belonging* to Finigan which were described in the complaint and order of replevin. However, Hester filed a cross-bond to retain *929possession of the cattle described in the action, and he is not now in a position to say he did not have possession. When he filed the bond to retain possession, he impliedly admitted that he had possession of the cattle involved in the suit; however, the filing of the bond to retain possession did not estop him from contending that he was the real owner of the property.

In Strahorn-Hutton-Evans Commission Co. v. Heffner, 74 Ark. 340, 85 S. W. 784, it is said: “While the defendant, having executed a retaining bond, was estopped from denying that he was in possession of the property seized by the officer, he was not estopped from denying that this property was included in the mortgage upon which plaintiff based its right to recover, nor from showing that it belonged to him individually and that plaintiff had no right to it. ’ ’ See also Sibeck v. McTiernan, 94 Ark. 1, 125 S. W. 136.

Therefore, in the final analysis, the question in this case is whether the cattle Hester took from the pasture belonged to him or to Finigan. There is substantial evidence to sustain the jury’s verdict that they were Finigan’s cattle.

In his statement of points to be argued on appeal, appellant mentions the giving of Instruction No. 3 requested by appellee. But it is not shown in what manner the instruction was erroneous nor is the point argued.

Affirmed.