| Mo. | Oct 15, 1864
delivered the opinion of the court.
This was a suit by Fallon against Manning,'under the 7th art. of our Practice Act, to recover possession of a lot of brick and sand claimed-by the plaintiff. The property was taken .from the defendant and delivered to the plaintiff on the usual order. The petition was in the ordinary form, averring the plaintiff’s ownership and right of possession, and the defendant’s possession an unlawful detention of the property in dispute. The answer put in issue the material allegations of the petition ; and also alleged, that, at the time of the institution of the suit, the defendant held the property as one of the constables of St. Louis township, in St. Louis county, in virtue of a previous levy and seizure of the same by authority of an execution issued to him by a justice of the peace of said county, on a judgment rendered by said justice in favor of Archer, Whiteside & Col", against Peter Farry et al.; and further, that the defendant “believes, anfl therefore states thé fact to be, that said Peter Farry was at the time of said levy and seizure the owner of said sand and brick, so by the defendant levied and seized.” The answer
The plaintiff’s counsel contends that the answer in the case was insufficient to justify the court in rendering a judgment for the defendant for any sum whatever, much less for the whole value of the property taken, and calls the attention of this court to several of the supposed defects in the answer. It is enough to say, that in actions of this kind the defendant’s right to a judgment for affirmative relief in nowise depends upon the shape of his answer, but alone (where the plaintiff has possession of the property) upon the plaintiff’s failure to prosecute his action with effect. The extent o| the relief depends upon considerations which will be noticed hereafter. The statute provides that “ If the plaintiff fails to prosecute his action with effect and without delay, and have-the property in possession, the court or a jury shall assess the value of the property taken,” and damages and judgment shall be given against the plaintiff and his securities for the return of the property, or its assessed value, with damages and costs. (R. C. 1855, p. 1245.)
If a plaintiff, having got possession of property by means of his suit, should, before answer filed, voluntarily dismiss his suit, can there be any doubt that the defendant would in such case be entitled to have an assessment, and judgment for the property taken, or its value ?
But upon the supposition that the defendant was entitled 'to a judgment for any sum, it is insisted by the counsel for the plaintiff, that, inasmuch as it appears upon the face of the record that the defendant had only a special interest in the property to the extent of the execution levied on it, the
Dilworth v. McKelvy is a well considered case, and, instead of overturning, sustains the judgment in the case under consideration. That was the case of the acknowledged owner of the property suing the defendant, who was in pos-o session claiming a lien for certain salvage services amount- ' ing to about one-fourth of the value of the property. The owner sued and got possession, but failed on the trial. Thereupon the value of the property taken was assessed and judgment was given for the defendant for the recovery of the property, or its full assessed value. This, the court held was wrong, and decided that the . court or jury ought to have assessed the value only of the defendant’s interest in the property. In the case at bar there is no just pretence, so far as the record shows, for saying the plaintiff had any interest whatever in the property. True, in his petition he asserts his' ownership, but any advantage that may be supposed to have been gained by his claim of title, is lost by his failure to maintain his suit. Looking into the answer, it is seen it wholly denies the plaintiff’s right; and while it claims only a special interest in the defendant, yet it in express terms 'declares the general ownership to be in Earry, the execution debtor: upon the whole record, then, it appears that the plaintiff is a stranger to the title; that the defendant has a special interest, and that Earry is the general owner.
Judge Napton, in delivering the opinion of the court in Dilworth v. McKelvy, says: “ Where the defendant has only a special interest and the plaintiff is a stranger, then the .entire value, according to the ancient doctrine of the common law, may be recovered by the special owner, who is answerable over to the general owner for whatever interest remains after the special claim is satisfied.”
Let the judgment be affirmed.