#### A. W. Billburg, Appellant, v. August Schmid, Appellee.

Gen. No. 6,375.

(Not to be reported in full.)

Appeal from the County Court of Rock Island county; the Hon. Nels A. Labson, Judge, presiding. Heard in this court at the October term, 1916.

Reversed and remanded.

Opinion filed April 19, 1917.

Statement of the Case.

Action by A. W. Billburg, plaintiff, against August Schmid, defendant, to recover a sum of money alleged to have been taken by defendant as constable from the premises of plaintiff, From a judgment against plaintiff for costs, he appeals.

Phillip H. Wells and Dietz & Sinnett, for appellant.

J. T. & S. R. Kenworthy, for appellee.

*149Abstract of the Decision.

1. Appeal and error, § 469 * —when remarks in presence of jury not assignable as error. Misconduct of a party and a third person consisting of remarks derogatory to the other party in the presence and hearing of the jury during the temporary absence of the trial judge cannot be assigned as error where the attention of the trial judge was not called to such misconduct, so as to enable the court to counteract whatever prejudicial effect the making of such remarks might have had upon the jury.

2. Sheriffs and constables, § 80*—when evidence insufficient to sustain verdict for defendant in action for money taken from plaintiff. In an action against a constable for money claimed to have been taken from the premises of the plaintiff, where it appeared that the defendant, while serving a search warrant, possessed himself of a large part of such money and that, although he did not claim the money as his own, or that he had any other right' to it, he refused to return it to the defendant on the ground that he did not know to' whom it belonged and that a party other than the plaintiff also claimed it, held that if such other party had made any legal claim for the money and the defendant had really been in doubt a, bill of interpleader should have been filed, or he should have produced such other party as a witness, and that the verdict in favor of the defendant was against the weight of the evidence.

*

See Illinois Notes Digest, Yol*. XI to XV, and Cumulative Quarterly, same topic and section number.

Me. Presiding Justice Niehaus

delivered the opinion of the court.