Case v. Fogg

46 Mo. 44 | Mo. | 1870

Bliss, Judge,

delivered the opinion of the court.

The plaintiff brought her action in* the nature of an action of trover for the conversion, by the firm of Fogg, Miles & Co., of which defendant was a member, of a large quantity of ladies’ wearing apparel, furs, jewelry, etc., and recovered a judgment for $2,389. Counsel, in their briefs and argument, have considered at length the questions involved in the relation of the plaintiff, as wife, to her apparel and household stuff, etc., received from her parents, her paraphernalia, etc.; to her right to sue in her own name, and to the effect of a divorce, etc. ; but, upon inspecting the record, I do not see how those questions can be considered by us. There is a bill of exceptions containing the evidence and the instructions to the jury given and refused, but I find.no specific exceptions to any action of the court that bears upon these questions, and the general exception at the close of the bill is altogether too general to advise us as to its application. There is nothing technical in a bill of exceptions, but it must clearly and distinctly advise the appellate court not only of the proceedings before the trial court, but of each ruling of which the appellant complains, and that such ruling was excepted to at the time. A party will not be permitted to lie by and let errors accumulate without objection, and, if he is defeated upon the main issues, to take advantage of them afterward. Unless it shows such exceptions the bill is useless, and those errors only can be considered that are raised upon the record proper by the motion in arrest, if one be filed. (Mortland v. Holton, 44 Mo. 58, and other cases.)

The petition, while claiming damages in the sum of $3,000, does not in the body of it state the value of the goods converted, but, after a general description, refers to an exhibit filed “ for a more accurate description and the values.” Under the increased liberality of our system, this defect should be held to be cured by verdict. The triers must have found the value of the goods as well as the fact of their conversion, in order to have given the ’verdict; their values were expressly denied by the answer as • though formally' averred; and by our statute, which in this respect makes no new provision, a judgment will not be disturbed for. the reason that the pleadings omit “ any allegation or averment, without proving which the triers of the issue ought not to have given such a verdict.” The motion in arrest was there fore properly overruled.

The evidence shows an aggravated case of a reckless and illegal attempt to enforce an innkeeper’s lien by Mr. Miles, but with the knowledge and without the hindrance of the defendant.

A tenfold security for the husband’s bill was demanded of the wife, and she was hardly permitted to take a change of clothing from her abundant stores. In a short time, without judicial process, large Saratoga trunks, loaded with rich goods when left, and of whose contents every one was. ignorant except Mr. Miles, were put up at auction and sold for a song. It may be unfortunate for the defendant to be charged with the wrongful acts of his partner, but this proceeding concerned the business of the firm, and he not only did not interfere to prevent it, but participated in the proceeds of the sale. Though the technical questions have not been saved, that might have been raised upon the record, yet its inspection shows no want of fairness toward the defendant. The instructions upon the main point were quite as favorable to him as the law would warrant, and the judgment does but simple justice to the plaintiff. '

The judgment is affirmed.

The other judges concur.