61 Mo. 368 | Mo. | 1875
delivered the opinion of the court
This was a suit before a justice of the peace, unde)' § 1 of art. 3 of the act concerning justice’s courts, providing for claims for specific personal property7, a substitute in fact for the ancient writ of replevin.
The claim was for 450 bushels of corn, in a field' of some fourteen or fifteen acres, and was based upon a sale made by the tenant, who raised the corn, to the plaintiff. One-third of the crop belonged to the defendant, who was the landlord, and one hundred bushels belonged to one White and defendant. The latter had been gathered and cribbed. No other corn had been gathered,.but the rest was all standing in the field, when this action was brought.
The only question in the case is, whether such an action can be maintained ; and as in our opinion it could not be, the various other questions raised in the case need not be noticed.
To sustain an action of replevin, the property7 must be susceptible of seizure by the officers, and delivery to plaintiff. In Kauffman vs. Schilling (58 Mo., 218) it was held, that where goods of the same nature, such as oats, corn and wheat, were so mixed as to render the identification of each particle impossible, but a division of equal value could readily be made,
The motion to dismiss, made in the justice’s court was properly sustained. The judgment of the circuit court is reversed.
