122 Mo. App. 126 | Mo. Ct. App. | 1906
The plaintiff is public administrator of the estate of W. 0. Swofford, deceased, and the defendant is the father of the deceased. The son was married to- Della E. Swofford and she was appointed administratrix of his estate and, as such, brought this action in replevin for a lot of personal property. She married and then the present plaintiff was substituted in her stead as plaintiff. The jury found for the plaintiff and assessed the value of the property at the time of the trial at $100 and likewise assessed the damages at $10.
There, was no substantial dispute as to defendant’s having the property and that originally it belonged totas son. He, however, claimed to have purchased a part of it of the son prior to his death. Ordinarily, the burden of proof is on the plaintiff, but on issue as here presented it devolved upon the defendant to show that he bought the property of his son. Instructions on this head were proper.
Defendant claims that there is no proper verdict in the case, in that it is not returned in favor of the plaintiff Gibson, but is in favor of tlie former plaintiff, Della Swofford. The verdict is headed with a formal entitling of the cause, as
“Della Swofford, Administratrix, plaintiff, v. William Swofford, defendant.”
It then proceeds to state that, “We, the jury, find that plaintiff was entitled to the possession,” etc. As already stated, Della Swofford was the original plaintiff and an order of record was entered substituting James Gibson, in her stead. We regard the objection as unsubstantial.
The defendant complains that the verdict was the result of prejudice or passion, as it had no evidence upon which it could be reasonably founded. We have gone over the record and find that in view of the rule that every reasonable inference, which may be based on the evidence, must be allowed in favor of the prevailing
We find too that there was sufficient evidence upon which to base the allowance of value of the property in the circumstances shown.
What we have already said disposes of some objections made to instructions. As an entirety, we regard them as not subject to criticism. This litigation, so far as amount involved is concerned, does not justify carrying it further, since it has been already sharply contested for considerable time and, there being no error substantially affecting the merits, the statute commands that the judgment be affirmed, and we so order.
