Reed v. Wilson

13 Mo. 28 | Mo. | 1850

BIRCH, J.

Reed, as guardian of Tolson, a lunatic, brought au action of replevin against Wilson & Garner for the detention of slaves and other personal property. At the return term the defendants pleaded the general issue, entitling it “ at the suit of Tolson, by her guardian,” upon which the plaintiff took issue. At the trial term, the defendants had leave to amend their plea, by entitling “at the suit of Reed, guardian of P. Tolson,” corresponding with the declaration. The plaintiff having ineffectually objected to the amendment,, thereupon moved for judgment against the defendants for want of plea, which was overruled and the parties went to trial. It was properly proven that Miss Tolson had been declared a lunatic, that Reed was her guardian and had demanded the property in suit which was refused by the defendants. It is deemed unnecessary further to recapitulate the testimony, it beiug apparent from the record, that the issue in the court Below was finally narrowed to the legal right of the guardian to institute a suit'in his own name, instead of that of his ward. Upon this point, the current of general authorities seems unbroken and conclusive, aud we do not perceive that the reasoning upon which they are predicated is impaired or affected by the provisions of our statute, regulating the action of Replevin, or the duties of the guardian as prescribed in the act relative to Insane Persons. We perceive therefore, no error in the instructions of the Circuit Court, upon which the plaintiff took a non-suit; these instructions having simply asserted the.legal conclusion, that the plaintiff could not recover the property of his ward in an action in his own name but that (a convsrso), such a suit must be instituted and prosecuted in the name of the lunatic, by the guardian.

Upon the other points in the case, as the bill of exceptions contains nothing upon which we can predicate an opinion adverse to the recovering, upon which the judge proceeded in the exercise of the discretion he was clothed with respecting the motion to amend the pleading and the antagonist one for judgment by default, the legal presumption arises that he used it legitimately and soundly ; and the plaintiff having “ failed to prosecute his suit with effect,” the assessment of damages, &c., would seem, not only regular but imperative and surely may be done by the court, if either party require a jury. Upon the whole record therefore, the judgment must be affirmed.