Garth v. Caldwell

72 Mo. 622 | Mo. | 1880

Lead Opinion

I.

Sherwood, C. J.

1. Bill of Exceptions. There is no bill of exceptions here that we can .regard as such, since the bill which is said to contain the evidence and other proceedings had at the trial, has not been signed by the judge nor otherwise authenticated. On a former occasion, when an alternative writ was asked and granted to compel Judge Redd to produce the original bill of exceptions in this case, or the copy thereof, file the same with the clerk of .the Ralls circuit court, and make an appropriate entry nunc pro tunc, etc., etc., it appeared from the return of the judge, which was not traversed, that he had signed a copy of the original bill of exceptions, but after the expiration of the sixty days agreed upon, and we refused to award a peremptory writ, remarking, among other things, in denying that writ, that: “It does not appear that the second bill might not have been prepared and tendered to the judge within the authorized period, nor that the same was so tendered ; nor is there any fully satisfactory reason for the delay; and besides all that, the relator has not even caused the bill, though signed out of time, to be presented in term time for filing.” State ex rel. Caldwell v. Redd, 68 Mo. 106. "What has become of the bill of exceptions signed by the judge, does not appear, nor is it material for our present purpose to inquire. It is sufficient for us to say that what is termed the original bill of exceptions is not signed by the judge, and, therefore, cannot be regarded by us as preserving any of the matters said to be contained therein.

II.

2.KEPLEyiN: crops, Since there is no bill of exceptions, we can only look to the record proper; and first to the petition: "We do not regard that as subject to criticism, because it alleges that part of the property sought to be replevied is “ six acres of corn on the stalk.” Whatever opinions were formerly entertained on this point, it seems quite well established now, both in England and in this country, that annual crops, crops raised by yearly labor and cultivation, or fructus industriales, are to be regarded as personal chattels, independent of and distinct from the land, capable of being sold by oral contract, and this without regard to whether the crops are growing or having matured, have ceased to derive any nutriment from the soil. 2 Schouler Bex*. Prop., 468, et seq. and cases cited; 2 Bingham Real Prop., 184, et seq. and cases cited; Benjamin on Sales, §§ 120, 121, 126, and cases cited

III.

3.____. pleading. And even if it had been necessai’y to have declared that the corn had matui’ed, as claimed by defendant, in order to have shown it to be the subject of replevin, advantage of that defect should have been taken at an earlier stage of the proceedings, by moving to have the petition “ made definite and certain.” R. S. 1879, §, 3529; Bliss on Code -Pleading, § 425, and cases cited. Besides, the code requires that: “ In the construction- of a pleading, for the purpose of determining its effect, its allegations shall he liberally construed, with a view to substantial justice between the parties.” R. S. 1879, § 3546.

4. Judicial Notice: crops. Moreover, that code also provides that “Matters of which judicial notice is taken, need not be stated in plead-ÍU°” K S- 1879> § 3548 i ;B1ÍSS C°de Plead-> § 177. Now the present action was instituted in December, 1874, and among those matters whereof courts will take judicial notice is that certain crops mature at certain seasons." Bliss Code Pleadings, § 188 ; Floyd v. Ricks, 14 Ark. 286; 1 Greenleaf Ev., § 5. There is no doubt, therefore, that the petition is good, in the particular referred to.

IV.

5. bbpudvin: verdict The objection to the verdict, that it is general: “ We, the jury, find for the plaintiff,” and does not find the value of the Property, nor assess any damages for taking and detention, is not tenable in the circumstances of this case. The plaintiff had the property in possession, and the verdict says, rightfully. The fact that the jury did not go on, as they might have done, and assess damages in plaintiff’s favor, has certainly not operated to the injury of the defendant, and the plaintiff is not complaining on that score ; and we are expressly forbidden to reverse any judgment unless for “ errors materially affecting the merits of the action.” R. S. 1879, § 3775. This is not one of that sort. The judgment will, therefore, be affirmed.

All concur.

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Rehearing

On Motion for Rehearing.

I.

Sherwood, C. J.

6. Pleading: jeofails.

Granting that the petition be defective in that it does not allege that the property was in the P0ssessi°0 of the remaining defendant, Caldwell, yet it does allege that the defendant wrongfully detains the property, and this is an indirect and inferential allegation that the property was in the possession of the defendant; an allegation which, though defective, is certainly good after verdict, since the words “wrongfully detains ” necessarily imply the adverse possession of the property sued for in replevin. Tidd’s Prac., 919, and eases cited ; and it will be presumed (if the evidence be not preserved and overthrow such presumption, International Bank v. Franklin Co., 65 Mo. 105), that those facts defectively stated or omitted, were in proof before the jury rendering the verdict, or else that no such verdict would have been returned. In these instances “ such defect is not any jeofail after verdict.” 1 Saund. Rep., 228, note 1.

II.

But a reversal cannot occur in this case on account of the defect in the petition, for another very sufficient reason, that the answer “ explains well enough how Caldwell became connected with the case,” alleging that he had seized and taken it as sheriff, etc., and “denies that he wrongfully detains said property.” The answer thus cures any defect in the petition. For the denial that defendant “wrongfully detains” the property necessarily admits the detention, but only denies the wrongfulness thereof. The defendant thereby admits that he has the property in his possession. The allegation in the answer that defendant had seized and taken the property, etc., and asks for, its return and delivery to him, also shows that defendant was in possession of the property at the time plaintiff sued out his writ of replevin. These allegations of the answer, by putting in issue that fact, which the petition should have alleged, cure such lack of allegation. Stivers v. Horne, 62 Mo. 473.

7.-.

Even at common law it was a rule of pleading that an omission to state a material fact, either in the declaration or special plea, would be obviated if the pleading of the opposite party put the matter in issue. This rule was known as “ express aider.” In an old case in Massachusetts the omission of a necessary averment that the defendants had mills on and below a certain mill-dam, was held supplied by a plea admitting that they were seized and in possession of certain mills, Parker, C. J., remarking: That if “the parties go to trial upon a full knowledge of the charge, and the record contains enough to show the court that all the material facts were in issue, the defendant shall not tread back and trip up the heels of the plaintiff on a defect which he would seem thus purposely to have omitted to notice in the outset of the controversy.” Slack v. Lyon, 9 Pick. 62; Bliss on Code Plead., § 437, and cases cited.

III.

8. bill Of exoeptions. Bills of exceptions were unknown to the common law ; their origin was altogether statutory, having been introduced by tbe 13 Edw. I. C. 31. Bulkeley v. Butler, 2 Barn, and Cres. 434; Ned v. State, 7 Porter (Ala.) 187. The statutes of this state provide but two methods whereby a bill of exceptions may be .signed during the term; one by the judge; (R. S. 1879, § 3635); the other by by-standers, in case the judge refuse to sign; (R. S. 1879, §§ 3637, 3638.) Where, however, the parties by consent entered of record at the same term when the exceptions are taken, agree that the bill may be filed on or before a day certain in vacation, the statutory rule has been so far, by long practice and decisions, relaxed, as to permit this to be done. ' If during the term the judge refuse to sign the bill, the party has his remedy by calling bystanders. If after the term and during the period fixed by the record agreement of the parties, he refuse to sign, relief must be sought by appealing to the mandatory authority of this court.

. Nearly thirty years ago, a party, during the term, presented his .bill of exceptions, which the judge refused to sign because not presented, within five days as required by rule of court. Upon this refusal, the defendant tendered a bill of exceptions to the decision of the court in refusing to sign the bill of exceptions first tendered, and appealed from the judgment. When the cause came here it was held. “1. This court cannot notice the bill of exceptions which the judge refused to sign, because it is not upon the record in the mode required by law, either by the signature of the judge or of bystanders. 2. Upon appeal, the bill, of exceptions taken to the refusal of the judge to sign the bill previously presented cannot be noticed, because if his refusal had been improper, it is not to be corrected by appeal.” Darrah v. Steamboat, 17 Mo. 276. 'The case just cited fully supports the view of the matter we took in the original opinion respecting the bill of exceptions in the case before us. A more recent case holds substantially the same view. Thus, where the judge refused to sign a bill of exceptions and so certified, etc., affidavits were taken as to its truth, but it was not signed by bystanders, and this court remarked : “ But there can be fio bill of exceptions at all, unless it be signed either by the judge of the court or by bystanders. This bill of exceptions was not signed at all, and must be regarded as a nullity.” Smith v. H. & St. Jo. Railroad, 55 Mo. 601. The •proper course for the defendant to have pursued in the present instance, was to have asked for a mandamus to compel the judge to sign the original bill; and his refusal -to sign “ cannot be coi’rected by appeal.” 17 Mo., supra,.

The case of Maupin v. Virginia Lead Mining Co., in which a motion was made to strike out the bill of exceptions because not filed in time, differs widely from this one, in that there the bill of exceptions was signed by the judge, and was not filed in time owing to what we considered unfair conduct of the attorney of the adverse party to whom was intrusted the duty of filing the bill. There is no such element in this case. For these reasons we deny the motion for rehearing.

All concur.