Hansard v. Reed

29 Mo. 472 | Mo. | 1860

Soott, Judge,

delivered the opinion-of'the court.

This was an action on a bond given in a suit for the claim and delivery of personal property. The suit on which the bond Was taken was begun under the act of 1849, before the code of 1855 went into operation. A demurrer having been sustained to the petition filed in the suit on which the bond was taken, there was a judgment for costs against the plaintiff, but no assessment of the value of the proporty or of damages for its detention; nor was any return of the property awarded. After this judgment, and during the same term, the court granted the plaintiff leave to amend his petition. From the record of the case, as it is in the bill of exceptions, it does not appear that any further steps were .taken in it — there being no return of the property awarded, nor its equivalent in damages, nor any damages awarded for its detention. This suit was commenced on the bond to recover the value of the property and damages for its detention. The court below held that the plaintiff in this suit on the bond could not recover the value of the property delivered to tlie defendant.in the action in which he was plaintiff and in which he executed the bond, the foundation of this suit.

The defendant was mistaken in supposing the bond on which this suit is brought was executed under the code of 1855. It was made before that code went into operation, so that this case does not differ from that of Berghoff v. Heckwolf, 26 Mo. 511, and would be decided by it but for the reason that this suit was brought prematurely — the suit on which the bond, the foundation of this action, was given not having been finally disposed of when this proceeding was commenced. As the court gave the plaintiff leave to amend his petition, such a step on the part of the court impliedly set aside the judgment against the plaintiff} and reinstated the cause on the docket, where it is still pending. In the case of Lane v. Kingsbury, 11 Mo. 408, this court held that as the new trial could not have been granted but by setting aside the former judgment, the granting of the new trial impliedly set aside that judgment.

As the effect of reversing this judgment on the ground on which it is placed is to declare the first, suit still pending, the plaintiff in this action can defend that suit, and if he succeeds he can proceed in the manner pointed out in the act of 1849, as it is explained in the case of Collins v. Hough, 26 Mo. 152; or when the cause is finally disposed of he may sue on the bond. The other judges concurring, the judgment will be reversed.