140 Mo. App. 102 | Mo. Ct. App. | 1909
This is an action of replevin wbicb was instituted before a justice of tbe peace, proceeded tbence by appeal to tbe circuit court and from there here. Tbe property involved is two yearling mules belonging to plaintiff, and taken up by defendant in bis field while running at large on December 25, 1906. He at once published notices describing tbe property, and' stating if the owner did not come forward and claim and prove it. before tbe expiration of thirty days from the date of the notice, to-wit, December 26, 1906, it would be posted before some justice of the peace in Taney county, Missouri. In addition defendant filed one of the notices in the office of the clerk of the county court the second day after he posted the notice. The day the notices were put up plaintiff saw one of them and ascertained where his property was. He fell in with defendant that day, asked him what the latter’s charge •was for keeping the property and was told it was one dollar. Instead of paying this sum, plaintiff began the present action a few days later. Much testimony was given tending to show defendant had been harassed by marauding stock belonging to plaintiff. Defendant did not claim he had a lawful fence, but said he had an ordinary rail fence, such as was common in the country. At the conclusion of the evidence the court gave a peremptory order to the jury to return a verdict for plaintiff, and ignoring all requests for instructions recognizing defendant had any right to retain the property until he was compensated according to law for the
The point is made that the justice court acquired no jurisdiction because the statement in replevin was not verified by affidavit. An affidavit was not necessary to give jurisdiction. [Hingham v. Morrow, 29 Mo. App. 488; Zimmerman v. Downey, 66 Mo. App. 106.]
The judgment is reversed and the cause remanded.