O'Bannon v. St. Louis & Gulf Railway Co.

| Mo. Ct. App. | Feb 21, 1905

BLAND, P. J.

(after stating the facts).— (1) The appeal was dismissed for the reason the abstracts of the record, as then filed, failed to show that the bill of exceptions had been filed in time. The abstracts of the record now on file show that the case was tried at the April term, 1903, of the Dunklin Circuit Court and, on the twenty-second day of May, a verdict was rendered and motion for new trial filed and overruled, an appeal allowed and defendant given sixty days in which to file bill of exceptions; that during the same term (on June 30th) time to file bill of exceptions was extended sixty days, and on September sixteenth time for filing bill 'of exceptions was extended thirty days, and that bill of exceptions was filed on the twenty-sixth day of September, 1903, so that as now shown by the abstracts of record, the bilCof exceptions was filed in time.

(2) The contention of plaintiffs in error is that the petition does not allege facts sufficient to bring the case within section 4572, Revised Statutes 1899, providing for treble damages (which section reads in part that: “If any person shall cut down, injure or destroy or carry away any tree, ... of any other person, or shall dig up, quarry or carry away any stones, ore or mineral, gravel, clay or mold, . . . being a part of the realty, ... in which he has no> interest or right”) ; and that the court erred in trebling the damages assessed by the jury and entering judgment therefor. The petition alleged that the defendants in error were in the lawful possession of the land but it nowhere avers that they were the owners or had other than a mere possessory right in the land, and it also fails to allege that the plaintiffs in error had no right or interest in the earth and sand removed by it from the land.

In Hewitt v. Harvey, 46 Mo. 368" court="Mo." date_filed="1870-08-15" href="https://app.midpage.ai/document/hewitt-v-harvey-8002959?utm_source=webapp" opinion_id="8002959">46 Mo. 368 and Pitt v. Daniel, 82 Mo. App. 168" court="Mo. Ct. App." date_filed="1899-12-04" href="https://app.midpage.ai/document/pitt-v-daniel-6619489?utm_source=webapp" opinion_id="6619489">82 Mo. App. 168, it was held that petitions which omitted to state that the defendant had no interest or right in the thing taken from the land were insufficient to entitle the plaintiff to treble damages. The same ruling was made in this case when it wag here on appeal. The judgment should have been for the damages assessed by the jury and no more. It is therefore considered that the judgment be reversed and the cause remanded with directions to the trial court to enter judgment for defendant in error for one, hundred and twenty-five dollars with sis per cent interest thereon per annum from May 22, 1903.

All concur.