48 Mo. App. 221 | Mo. Ct. App. | 1892
As there is no bill of exceptions in this casé we can only examine the record proper.
The action is for the claim and delivery of personal property, and it originated before a justice of the peace. The property was taken from the defendant by the constable, and delivered to the plaintiffs. The plaintiffs had judgment before the justice, and the defendant appealed. The appeal was taken on the twenty-fifth day of April, 1891, which was the same day of the trial, and it was, under the law, returnable to the next regular term of the circuit court, which was begun and held on the fourth Monday in May following the appeal.'
“ Now again comes the defendant in this cause in person and by attorney, but the plaintiffs come not but make ■default; and the defendant announcing ready for trial, •and waiving trial by jury, all the matters and things at issue are submitted to the court without the intervention of a jury, and the court, having heard the evidence adduced, and being fully advised of and concerning all the matters at issue between the parties, doth find for the defendant, and doth further find the value of the property sued for to be $130, and it is hereby ordered, adjudged and awarded by the court that said defendant, Joseph Jenkins, have judgment against the plaintiffs, •Clarkson and Kinch, principals, and W. R. Johnson, surety on their replevin bond in this cause, in the sum ■of $130, and that he have and recover of and from said principals and surety his costs in this cause expended, ■and therefor have execution.”
The plaintiffs’ first contention is that, as the case ■originated before a justice of the jjeace, the judgment of the circuit court should have been in conformity to section 6189, Revised' Statutes, 1889, which provides in proceedings in replevin before a justice of the peace that, if the plaintiff have the property and the justice •or jury should find the issues for the defendant, they •should also find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit. The plaintiffs are wrong in this, because the statute provides, that in appeals from justices ■of the peace, the appellate court shall be governed by the practice in such court, except that by agreement of parties the case may be tried by a jury of six men. R. S. 1889, sec. 6348.
The other objection to the judgment is that it does not comply with the statute (R. S. 1889, sec. 7490), in that the judgment fails to give the defendant the right to the return of the property. In this respect the judgment is nominally irregular, but we cannot conceive how this prejudiced the rights of the plaintiffs, or upon what ground they could base a complaint on account of the omission. The defendant is satisfied with the judgment as entered, and this ought to satisfy the law. The judgment will be affirmed.