Cross v. Hulett

53 Mo. 397 | Mo. | 1873

Sherwood, Judge,

delivered the opinion of the court.

This was a suit brought before a Justice of the Peace, by Cross against Hulett, to recover a cane mill, skimmer and pans, valued at $40.00 — resulting in a verdict and judgment for defendant. On appeal to the Common Pleas Court, the plaintiff had a verdict, which was set aside and a new trial granted, when the defendant again had a verdict and judgment in his behalf for the recovery of the property sued for, as well as for costs. This record (which has embodied within it a large portion of the petty quarrels, animosities and small trades of a neighborhood in Caldwell County, having no necessary connection with the matter in dispute,) shows that a Mrs. Beckett, the plaintiff and the defendant, were the joint owners of the above mentioned property, and that plaintiff claimed in liis evidence on the trial, that defendant had sold him his interest therein, which transfer was disputed by defendant. But whether defendant had sold his interest or not, in neither event was he entitled to a judgment against the ■plaintiff for the property in suit, as it is not pretended that the latter had ever parted with his joint share in the property. Replevin, or, its statutory substitute, an action for the possession of specific personal property, cannot be maintained by one joint owner of personal property against his co-owner, for the obvious reason that neither is entitled to the immediate and exclusive possession of such property. (2 Grlf. Ev., §§ 563 646 and 648; Wells vs. Noyes, 12 Pick., 324; 6 Bac. Ab., 697; Id., 71.)

For these reasons the judgment for tbe defendant, as rendered, was manifestly erroneous, regardless of wbat instructions may have been given or refused.

Judgment reversed and cause remanded.

Judges Wagner and Napton absent, the other Judges concur.