29 Mo. App. 658 | Mo. Ct. App. | 1888
This cause was here on appeal, and is reported in 23 Mo. App. 481. The judgment was reversed and the cause remanded. On its return to the circuit court, the defendant, Castleman, filed amended answer, as was held he might do, setting up a counterclaim, alleging various breaches on the part of plaintiff of the contract of lease. The plaintiff again recovered judgment, and defendants have again appealed. Various errors are assigned as grounds of reversal.
I. The principal contention is to have this court reconsider its former decision, in holding that defendants could be made liable as trespassers for the act of Castle-man in entering upon the premises as he did, and appropriating the whole of the common property belonging to Trim as lessor and the plaintiff as lessee, then on the premises, to-wit, corn standing in the field ready for gathering. We held on full consideration, that, although the entry of Castleman was not, in the ordinary sense, vi et armis, yet as the so-called process, under which the constable coerced the surrender of plaintiff, was absolutely void, the action of the justice of the peace being coram non judice, it was by false color of his office, and the apparent authority attaching to it, that the plaintiff was induced to yield the possession ; this we held was tantamount to force, and on the authority of Daniel v.
It was apparent on the face of the record in the justice’s court, that the land in question lay in Kelly township, while the action was brought in Palestine township, and that justice had no jurisdiction over a possessory action, under the landlord and tenant act, of land situate in another township. . Laws of Mo. 1881, p. 156; Hessey v. Heitcamp, 9 Mo. 36; Hansberger v. Railroad, 43 Mo. 196; Rohland v. Railroad, 89 Mo. 80. No judgment, it seems, was in fact rendered by the justice for the possession. After execution issued the justice made an indorsement on the writ directing restitution. The constable was aware of this, and was afraid to proceed to its execution in this particular, without an indemnifying bond. This bond was given by defendants for the very purpose of inducing the constable to proceed ; and in executing it the makers encouraged and promoted the wrongful act. The execution in such case is no protection, even to the officer. Town of Warrensburg v. Miller, 77 Mo. 66. Accordingly it was held, in Howard v. Clark, 43 Mo. 344, that if the court has no jurisdiction over the subject-matter, the officer executing the writ is supposed to know it, and the execution issued upon the judgment is no protection to him.
As already said, the very object of the defendants in executing the bond of indemnity was to stimulate the officer to proceed to the execution of this writ. In such case they are as much liable as the officer — the principal actor — in the wrongful act. Wetzell v. Waters, 18 Mo. 396; Peckham v. Glass Co., 9 Mo. App. 459.
But, say the learned counsel, there was no responsible connection between the act of taking possession of the land, and the subsequent wrongful conversion by Castleman of the crop. That was the very matter of contention on the former appeal, and it was directly determined against the appellants’ contention. We
’ II. It is next assigned for error that the jury returned no verdict as to the issue tendered on the counter-claim. Without undertaking to say that the verdict finding the issues for the plaintiff, and assessing his damage, was not tantamount to a finding against the validity of the counter-claim, it is a quietus to this objection to say, that it cannot be entertained here, for the reason that defendant, neither by motion for new trial nor in arrest, raised any such question in the trial court. Erdbruegger v. Meier, 14 Mo. App. 258; Parsons v. Randolph, 21 Mo. App. 362, loc. cit.
III. Criticism is made on various instructions alleged to have been given by the trial court. These instructions are not set out in the abstract of record furnished by appellants. We cannot, therefore, consider them, as has been repeatedly held.
IY. As to the allowance of interest on the claim of the plaintiff from the date of the conversion of the property, even if that was done by the jury, it was not error. Interest in such case is allowed as a measure of damages. Watson v. Harmon, 85 Mo. 447, loc. cit. The ruling-under section 2723, Revised Statutes, that interest on an account does not accrue until after demand made, has application exclusively to matters arising ex contractu, and not ex delicto.
It follows that the judgment of the circuit court must be affirmed. It is so ordered.
