26 Mo. 585 | Mo. | 1858
delivered the opinion of the court.
This is an action of replevin for twenty-five barrels castor oil, which the plaintiffs averred they were entitled to the possession of, by virtue of a special property therein, and that the same was in the possession of the defendants and unlawfully detained by them. The defendants answered separately. Sylvester denied all the material allegations in the
At the conclusion of the evidence on the part of the plaintiffs the defendants asked that the jury might be permitted to retire to consider their verdict in respect to Sylvester, which the court refused to permit; and the like motions were made separately in respect to each of the other defendants, which were also denied.
The motion was properly overruled as to Sylvester, for he admitted himself in possession, and the main controversy was with him as to the right of possession. At that stage of the trial the only evidence implicating Jackson was, that he was Sylvester’s clerk, and during his employer’s absence the oil was demanded of him. But as to Shinkle, he denied that he had possession, and disclaimed any interest, and there was not a particle of evidence to show that he had possession of the property directly or indirectly at the commencement of the suit, or that he really had or claimed any interest in it. The defendants then proceeded with the case on their part, and began by reading the deposition of Donnelly, one of the plaintiffs, which had been previously taken and filed; and if there was any doubt before as to the propriety of making Jackson a defendant, it was removed by the statement of the deponent that he had demanded the oil of him, and that he refused to give it up, saying “ that he had the oil and intended to keep it.” And as to Shinkle, the first reading of the deposition left a doubt whether he, too, was not properly joined in the action; but on a careful re-examination of it, we think it fails to show a single fact to connect him with the possession or detention of the property.
Generally any one in possession of goods may be made defendant in actions of replevin, for the owner is not bound to
Greenleaf, following the rule laid down in Gilbert, says, that the court will not direct the acquittal of one defendant in order that he may testify for the others “ if there be any evidence against him, though in the judge’s opinion not -enough for his conviction.” (Greenl. Ev. § 358.) In this state, under our system of practice, where the plaintiff'incurs practically no risk in misjoining defendants, even in actions ex contractu, and the temptation is so great to turn witnesses into defendants, the old rule ought to be relaxed, and the true test, we think, is laid down in McMartin v. Taylor, 2 Barb., S. C., 356, that the court ought to direct the jury to acquit a defendant on a proper motion for that purpose, if the facts be such that the jury would not be authorized to find a verdict against hin&; or if the court would set it aside if he was sued alone.
The cases present a diversity as to the time when the ac quittal should take place, viz., whether at the conclusion of the case on the plaintiff’s part, or at some subsequent stage. In Child v. Chamberlain, 6 Carr. & Pay. 216, Park, justice, said that it was the unanimous opinion of all the judges that the motion should be made at the close of the plaintiff’s case, before any part of the defendant’s evidence is gone into. But in the later case of Sowell v. Champion, 6 Adol. & Ellis, 415, Lord Denman said, “ the application to a judge, in the cowse of a cause, to direct a verdict for one or more of several defendants in trespass is strictly to his discretion, and that discretion is to be regulated not merely by the fact that at the close of the plaintiff’s case no evidence appears to affect them, but by the probabilities whether any such will arise before the whole evidence in the cause closes. There is so palpable a failure of justice when the evidence for the
Without undertaking now to construe the supplementary act concerning witnessos, passed in February, 1857 (Sess. Acts, 1857, p. 181), and to state the cases in which a party may be examined as a witness in behalf of his co-plaintiff or of a co-defendant, it is sufficient to say that in an action of replevin a separate verdict or judgment is not absolutely necessary from the nature of the suit, nor was any matter set up in this case which went merely to the personal defence of one defendant and not to that of the others, as for instance infancy, bankruptcy, or coverture; and there is nothing in this law which authorized either of the defendants to testify for the others.
The examination of Chenowith on his voir dire showed that the suit was defended for his immediate benefit, and he was properly excluded as a witness.
The court erred in not directing the jury, before the case was finally submitted, to acquit Shinkle, and on that account the judgment will be reversed and the cause remanded;
