Glasby v. Prewitt

26 Mo. 121 | Mo. | 1857

Richardson, Judge,

delivered the opinion of the court.

This case was commenced before a justice of the peace in 1854. The plaintiff filed a written statement of his cause of action, complaining that the defendant had in his possession six hundred bushels of charcoal, the property of the plaintiff, which he unlawfully refused to give up ; that the charcoal was of the value of forty-two dollars ; that the plaintiff had been damaged by the detention thereof forty dollars, and asked judgment for eighty-two dollars. On the trial before the justice the plaintiff recovered a judgment, from which the defendant appealed to the circuit court. On the trial in the circuit court the case was submitted to the court without a jury. No exceptions were taken during the progress of the trial to any decision of the court, and though the record states that the court considered the plaintiff had not proved a demand, this opinion was not announced in an instruction or in any other shape so that it can be reviewed in this court. The evidence was amply sufficient to establish a conversion, and no actual demand was necessary to entitle the plaintiff to recover; birt the court did not find the facts, and no instructions were asked or given, and the case is not properly saved for an appeal or writ of error.

The practice act of 1849, except the 25th article, did not apply to proceedings or actions commenced before justices of the peace, and the court therefore was not required to find the facts on which the judgment was predicated. (Code of 1849, art. 30, sec. 6; 21 Mo. 436; 19 Mo. 82; 20 Mo. 453.) The plaintiff ought, as under the old system of practice, to have asked the court to declare the propositions of law affecting his case, presented in the form of instructions, (9 Mo. 875,) and where the cause is tried by the court sitting as a jury, and no exceptions are taken until after the verdict, the judgment will not be reversed in this court. (9 Mo. 351; 21 Mo. 443; 18 Mo. 509; 19 Mo. 642; 19 Mo. 121; 24 Mo. 524.)

Justices of the peace have jurisdiction in actions of trover, (12 Mo. 51,) but only in cases where the damages claimed do not exceed fifty dollars; and for the reason that the justice had no jurisdiction in this case, the judgment of the circuit court is reversed and the cause dismissed at the cost of the plaintiff.

The other judges concur.