Cartmell Machine Co. v. Sikes

83 Mo. App. 565 | Mo. Ct. App. | 1900

BOND, J.

Plaintiff replevied from defendant a Springfield vibrating. separator with appurtenances, and also one second-hand 12-horsepower traction engine. Defendant’s answer set forth his contract with plaintiff whereunder he acquired title to the property, and alleged a mutual agreement for the exchange of the Springfield vibrating separator for another of a different make; averred that plaintiff failed to comply with the terms of this agreement for substitution; prayed that his notes given for the purchase of the property should be delivered up and canceled, and concluded by asking “that said Springfield separator be adjudged the property of plaintiff, and the said 12-horsepower traction engine be adjudged the property of defendant,” adding a prayer for judgment for damages. The cause was submitted to a jury and a verdict rendered that the defendant was entitled to the possession of the Springfield separator complete and also the second-hand 12-horsepower traction engine, which latter was found to be of the value of $850, and defendant’s damages were assessed in the sum of $200. The court rendered judgment in accordance with the verdict of the jury, from which plaintiff brought the case to this court by a writ of error.

It is insisted by the learned counsel for plaintiff in error that the record proper discloses a fatal defect- in the judgment rendered in the court below in this, that despite the fact that defendant in error failed to claim the Springfield vibrating separator in his answer and to demand the return thereof, the court adjudged the right to its possession to be vested in him. This error is well assigned. R. S. 1899, sec. 4473; Chemical Co. v. Nickells, 66 Mo. App. 689; Foster v. Carr, 55 Mo. App. 145; Young v. Glasscock, 79 Mo. 574. If tbe defendant in an action of replevin desires to recover tbe possession of property taken from bim by tbat writ upon tbe failure of tbe plaintiff to prosecute tbe action with effect, it is bis (defendant’s) duty to claim tbe same in bis answer and demand a return thereof. This is a statutory requirement, and must be complied with. It is not claimed by tbe learned counsel for plaintiffs in error tbat any other legal error inter* vened in tbe obtention of tbe judgment in this case in tbe lower court. Tbe verdict rendered by tbe jury clearly warranted a judgment in defendant’s favor, except for tbe possession of tbe new Springfield separator. There is no valid reason why tbe other issues should be re-opened. Tbe judgment will therefore be reversed and tbe cause remanded, with directions to tbe trial court to render judgment in favor of plaintiff in error for tbe possession of tbe new Springfield separator, and to render judgment in favor of defendant in error upon tbe other issues found in bis favor by the jury.

Judge Bland concurs; Judge Biggs dissents for tbe reason tbat in bis opinion tbe answer of defendant contains a claim of the property and a prayer for its return.