183 Mo. App. 385 | Mo. Ct. App. | 1914
Plaintiff, respondent here, commenced her action before a justice of the peace against the defendant Gibson and a Mrs. Moses, the petition or statement filed with the justice alleging that plaintiff, being the owner of a certain lot of ground situated in the city of St. Louis, the defendants afterwards entered upon the premises and committed a trespass thereon by digging up and carrying away therefrom a large number of ornamental hedge plants of the reasonable value of $150, as it is alleged; that the entry of defendants on the premises of plaintiff was without her knowledge or consent and that by the acts of trespass she had been damaged in the sum of $150, and that at the time the hedge was so dug up and carried away, defendants had no interest or right to the hedge so dug up and carried away from the land of plaintiff. Treble damages are claimed. There was no written answer filed before the justice. Service not having been had on Mrs. Moses and she not appearing, the case was dismissed as to her and proceeded against Gibson alone. Plaintiff had judg
His counsel make ten assignments of error. First, that the court erred in overruling the motion of defendant, made at the opening of the case, to elect and announce whether she would proceed with the cause as a common law action of trespass or as a trespass under the statute.
The second, third and fourth errors assigned are to the admission of certain evidence, among that, the testimony of a real estate agent as to the difference in value of the premises with and without the hedge, it being claimed that the witness was not qualified.
Fifth, that the court erred in allowing plaintiff to recall a witness after plaintiff had closed her case, and in allowing that witness to base his testimony on measurements he had made.
Sixth, error of the court in refusing a declaration of law asked by defendant' at the close of plaintiff’s
Seventh, that the court had erred in refusing to require plaintiff, upon the submission of the case, to make her election as to whether she had submitted her case on the theory that she was proceeding under the statute for treble damages or for a common law trespass.
Eighth, that the findings of fact of the court were not supported or warranted by the evidence; that some of the facts found were apart from and outside of the issues in the case; that the finding on other evidence and facts was erroneous; that the conclusions of law applicable and appropriate to the controlling facts were erroneous; that it was erroneous to enter judgment against defendant and his surety on the appeal bond for $300', being treble the damages erroneously found and assessed by the court; that the finding of facts did not embrace all the probative facts, or the requisite facts, necessary to a proper determination of the case and includes facts not relevant to the issues of the case nor material to its proper determination.
Ninth and tenth, to the error of the court in overruling the motions for new trial and in arrest.
"Without going into an examination of these assignments of error in detail, or undertaking to review the authorities cited by the learned counsel for appellant in his very elaborate brief, it is sufficient to say that a very careful reading of all the proceedings in the case, as contained in the abstract prepared by that learned counsel, fails to satisfy us that there is any reversible error present.
We confess to not quite appreciating the point made by the learned counsel for appellant that plaintiff should have been required to announce at the beginning of the case and at its conclusion upon what theory she expected to recover, whether as on a common law action or as one under the statute. It is very
This covers the first and seventh assignments.
We see no error in the admission of the testimony complained of in the second, third and fourth assignments. We say this after a careful reading of all of it and examination of the rulings of the learned trial court in passing upon it.
The fifth assignment made by counsel for defendant, as to the court allowing a witness to be recalled for further examination by counsel for plaintiff after that witness had been excused, is not well taken. The record, or the abstract of it as furnished us by counsel himself, fails to show that the witness referred to was recalled after plaintiff had closed her case; it is true that he was recalled and examined on matters not cov
It is impossible, reading over the testimony in the case, to sustain the point that the declaration of law asked by defendant at the close of plaintiff’s case, to the effect that under the pleadings, issues and evidence plaintiff could not recover, should have been given. Plaintiff had, up to that time, and by her testimony in chief, given substantial evidence in support of facts necessary to her recovery.
No declarations of law were asked by either party, nor given by the court, nor was the court asked by either party to make a finding of fact and his conclusions of law thereon under the statute. I't is true that the court embodied in his finding a statement of facts found, but while this was not a finding under the statute, it is binding upon us as would be a general finding, if supported by substantial testimony. It covers all of the facts in issue upon the establishment of which plaintiff was entitled to recover.
In his argument of the case, learned counsel for appellant cites us to the sections of the statute making it an offense punishable by indictment or information to cut down or destroy hedges, referring to sections 4600, 4794, and other sections of the criminal code relating to miscellaneous offenses in which the term “hedges” is used, and he argues that on the rule
It follows that the motions for new trial and in arrest were properly overruled.
Finding no reversible error, the judgment of the circuit court is affirmed.