Fulkerson v. Dinkins

28 Mo. App. 160 | Mo. Ct. App. | 1887

Ellison, J.

This is an action of replevin, commenced before a justice of the peace. Plaintiff lost in •both lower courts, and brings the case here by appeal. The defendant claims a special interest and right of possession of the property under the stock law of 1883-Acts, 1883, p. 26. The property was taken from defendant, and by the officer delivered to plaintiff. The verdict was as follows: “We, the jury,, find the issues for the defendant, and assess his damages at the sum of $12.50.”

The statute of 1879 (sect. 2902) is, that “in all cases where the property has been delivered to the plaintiff, and the justice, or jury, shall find for the defendant, they shall find whether the defendant had the right of property, or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall also find the value of the property, or the value of the possession, and such damages for withholding said property as may be just and proper.”

Verdicts rendered for defendants in cases of replevin should be in substantial compliance with the terms of that section. Wells on Replevin, sect. 741; State ex rel. v. Dunn, 60 Mo. 64. Finding the “issues” for the defendant is not finding whether he had the right of property, or the right of possession. Nor is it finding the value of the property, or the value of the possession. The only intelligible finding in the verdict is as to the amount of damages. But damages can only follow a violation of one or the other of the rights named in the section quoted. The value of the property, or of the possession, should likewise be found, so that a judgment such as is required by section 2903 may be rendered.

The judgment is, with the concurrence of the other judges, reversed and the cause remanded.