Emory v. Phillips

22 Mo. 499 | Mo. | 1856

Ryland, Judge,

delivered the opinion of the court.

The answer of the defendant in this case may be considered as a negative pregnant. There is no denial of his taking away the house as alleged in the plaintiffs’ petition. The plaintiffs charge that the defendant on, See., at &c., “ without leave and wrongfully did enter upon a certain tract or parcel of land, (describing it,) of 'which they were the owners and in possession, and take from the premises a house thereon situated, used and employed as a Methodist meeting-house or church, and carried said house off and away from said premises, to plaintiffs’ damage,” &c.

Defendant denies that he “wrongfully entered upon the premises and took therefrom a Methodist church or meetinghouse of said plaintiffs,” and the defendant charges the fact to be, that the house spoken of was his property, and was not owned or claimed by plaintiffs. He also charges that one of the plaintiffs disclaimed the ownership, and told the defendant he might do as he pleased with the same. He denies that plaintiffs had possession of the premises.

This answer ma.y be considered as admitting the taking away of the house in dispute, and ought to have been so construed by the court below. It does not openly deny the taking; and, although it does not frankly admit it, yet such is the evasive and improper manner of stating the defence, that the law would construe this as admitting the taking, but not the ownership. The right or ownership of the property was all then that was in dispute.

The plaintiffs charge the defendant with two important acts ; the taking away of property is one, and the properly belonging to the plaintiffs is the other. The defendant says, “ the property belongs to me.” He does not deny the taking ; and, unless it is denied specifically, it is admitted. So much, then, for the taking.

Now, as to the evidence of character, the testimony of Hacker was properly rejected; the question put to him, about the character the witness bears among a majority of his his neighbors, is not the proper legal and formal question; and parties, when they attack a witness, must do so according to the rules prescribed by law, as laid down by the elementary writers. The same remarks are applicable to Freeman’s testimony. In Adams v. Hannon, (3 Mo. 225,) this court held that “ what is the character of the plaintiff for chastity, among the majority of her neighbors, with whom the witness had conversed ? is, we think, a question not at all calculated to elicit an answer proper to prove general character.”

But the principal fact proved by the witness, whose character was-attacked, was, or ought to have been, taken by the court below as admitted; that is, the taking off the house. The defendant’s answer may be considered as admitting this, by the manner it is set forth. In looking over the whole record, there appear no grounds upon which to reverse the judgment of the court below; the finding may be considered sufficient, and it warrants the judgment.

The other judges concurring,

the judgment below must be affirmed.