Ranney v. Thomas

45 Mo. 111 | Mo. | 1869

Currier, Judge,

delivered the opinion of the court.

This is a replevin suit. Under an order of the court the property in dispute, or a portion of it, was taken from the defendants and delivered over to the plaintiff. In the progress of the case a demurrer to the petition ivas sustained. Leave to file an amended petition was thereupon granted, but no further petition was ever filed, and the plaintiff subsequently moved the court to dismiss the suit. This, however, in that stage of the proceedings, was not allowable. (Berghoff v. Heckwolf, 26 Mo. 511.) The court, therefore, without, so far as appears, taking any action upon the plaintiff’s motion to dismiss, proceeded to hear evidence in regard to the value of the property which had been delivered into the hands of the plaintiff, and to assess the defendants’ damages. The hearing resulted in a judgment, which Avas entered of record against the plaintiff de bonis propriis — that is, as a judgment to be satisfied from his own property. After judgment the plaintiff submitted a motion for a new trial, which was overruled.

Various reasons are therein assigned for setting aside the judgment. But it was too late to initiate objection to the prior acts and rulings of the court which are complained of in the motion. (Dozier v. Jerman, 30 Mo. 220.) No exception had been taken to any action of the court prior to the judgment. No declarations of law were either asked or given, nor ivas any part of the testimony preserved in the bill of exceptions. The case is barren of points available to the plaintiff, in this court, as respects the acts and rulings of the court prior to the entry of judgment. But it is objected that the judgment itself is erroneous, as being rendered against the plaintiff de bonis propriis, whereas it should have been de bonis testatoris — that is, a judgment against the plaintiff in his representative character, to be satisfied out of the assets of the intestate. This point is well taken. The plaintiff was suing in his representative character, and the adverse judgment against him should have been entered as though he had been sued in that capacity. There are exceptions to the rule, as in cases of devastavit; but ordinarily, where an administrator sues or is sued in his official character, the judgment should be entered against him in the same character, to be levied out of the assets of the testator or intestate. (Bingham on Judgments, 89 in 11 Law Library, 37; Laughlin v. McDonald, 7 Mo. 684; Einney v. State, to use, etc., 9 Mo. 225.) The error in the judgment, however, is susceptible of correction. Therefore, the judgment of the Cape Girardeau Court of Common. Pleas and of the Second District Court are both-reversed; andi this court, proceeding to enter up such judgment as the Common. Pleas Court ought to have rendered, directs a judgment de bonis-testatoris against Ranney, the original plaintiff. Costs will be taxed and allowed the same as though the judgment of the District Court were affirmed.

The other judges concur.