No. 19.

#### Smart v. Coke.

This was a trial of the rights of property originating before a justice of the peace and appealed to the Circuit Court of Williamson county by appellant, in which judgment was again rendered against her and she brings the case here. It is shown by the evidence, that on the 8th day of June, 1885, T. E. Cagle, constable, levied on “one tramway engine, one tramway lumber car, one heading and shingle mill and all the appurtenances belonging to said engine, car and mill,” as the property of William Smart on an execution in favor of appellee, David Coke. On the twelfth day of the same month appellant, who is the wife of William Smart, gave notice in writing that she claimed the property levied upon, and both trials were had under the statute providing for the trial of rights of property before justices of the peace. This judgment is reversed because the evidence does not support the verdict and because the instruction numbered thirteen, given on behalf of appellee, is erroneous. Both seem to ignore the fact that there was other property than the engine involved in the case. The evidence of appellant is positive as to her ownership of the lumber car and heading and shingle mill, and she is wholly uncontradicted. The judgment, however, is against her for all the property, and a complete indemnity to the constable to sell it for the debt of her husband: Sec. 103, Ch. 70, B. S. The verdict was therefore manifestly against the evidence, and should have been set *656aside for that reason.

Opinion filed April 15, 1886.

Attorneys, for appellant, Mr. Wm. A. Schwartz and Messrs. Clemens & Warder; for appellee, Mr. J. B. Calvert.

Opinion by

Wilkin, J.

Judge below, Oliver A. Harker.