Payne v. Weems

36 Mo. App. 54 | Mo. Ct. App. | 1889

Thompson, J.,

delivered the opinion of the court.

This was an action of replevin, commenced in the circuit court of Newton county, for the recovery of a horse, alleged in the petition to be of the value of one hundred dollars, and also a cow, alleged in the petition to be of the value of thirty dollars. The petition claims damages for the detention of the property sued for in the sum of five hundred dollars, and also damages for injury thereto, in the sum of seventy-five dollars, making a total claim of seven hundred and five dollars. There was a verdict for the recovery of the horse, fixing its value at sixty dollars, but no finding in respect of the cow. Judgment was entered for the plaintiff for the recovery of the horse described in the petition, or the value thereof, to-wit, sixty dollars, as assessed by the jury. The defendant, appealing to this court, assigns for error that the circuit court had no jurisdiction of the subject-matter of the action. This assignment of error is answered by the language of the statute (R. S., sec. 2881 ), which limits the jurisdiction in replevin of justices of the peace, in counties having less than fifty thousand inhabitants, to cases where the value of the property sought to be recovered, and the damages claimed for the taking or detention, and for injuries thereto, shall not exceed, in the aggregate, one hundred and fifty dollars. The old rule, that the value proved determines the jurisdiction of justices of the peace, has been done away with by section 2895, Revised Statutes, which fixes the jurisdiction, as far as value is concerned, by the amount claimed in the statement and affidavit, but which does nod touch the ■question as to damages. It is thus seen that their jurisdiction, so far as value is concerned, is fixed by section 2895, at the amount set forth in the statement and 'affidavit; and that their jurisdiction, so far as damages are concerned, is fixed by section 2881, at the “ damages claimed.” In this case the aggregate of value claimed and of damages claimed being, in excess of one hundred and fifty dollars, and Newton county being, as we judicially know, a county having less than fifty thousand inhabitants, — it follows that the circuit court had jurisdiction of the cause; for where the boundary of the jurisdiction of the justice ends, that of the circuit court commences. Our decision in this case is not at all opposed to the decision of the Kansas City court ■of appeals in Mason v. Hannah, 30 Mo. App. 190; for there the value of the chattel sued for was alleged to be one hundred and twenty-five dollars and no damages were alleged.

II. The second assignment of error is the refusal of a new trial on the ground of newly discovered evidence. The claim of new trial on this ground was supported by two affidavits, that of C. E. Hall and that of J. E. Howard. Mr. Hall testified that he was the constable who served the writ of replevin on the defendant, and that the defendant had disposed of the horse in controversy when the writ was served, and that he never told the defendant that he knew of this circumstance until the twenty-fifth of May, 1888, which was after the trial. We have had occasion to observe in a recent case ( Funk v. Funk, 35 Mo. App. 246), that the action of replevin covers all the relief that can be obtained in an action in the nature of trover, and more. We will not, therefore, reverse the judgment for the plaintiff, in an action of replevin, which is merely for the value of the chattels sued for, on the ground of newly discovered evidence tending to show that, at the time of the bringing of the suit, the defendant had disposed of the property, so that it could not be recovered in kind. Such a ruling would drive the plaintiff to an action in the nature of trover, which would probably lead to the same result; and the multiplication of actions is contrary to the policy of the law.

The affidavit of Mr. Howard is to the effect that in a conversation with the plaintiff, Mrs. Payne, she stated that the horse in controversy belonged to her husband, and that he did not disclose these facts to the defendant until after the trial. There is nothing in this affidavit which warrants the granting of a new trial. Evidence of declarations of the parties and witnesses is always open to suspicion, and is perhaps the weakest sort of evidence which, is allowed to have weight in judicial controversies. A new trial is never granted on the ground of newly discovered evidence, unless the evidence would probably change the result. Schoenlau v. Friese, 14 Mo. App. 436. It does not appear at all probable that evidence of an unsworn declaration of this kind would have such an effect.

The judgment will be affirmed.

All the judges concur.