6 Mo. App. 53 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action brought before a justice of the peace, under the act relating to claim and delivery of personal property. Judgment was given for the appellant; and in the court below the respondents moved to dismiss the case for insufficiency of the complaint, and the suit was dismissed.
Undoubtedly the statement should contain an allegation that the property is wrongfully detained by the defendant. This is not only required by the first section, but is the foundation of the action and of the issue of the delivery
As in the present case the plaintiff did not literally follow the form, he cannot claim the benefit of it as a form especially prescribed by the statute. Any variation at all implies an intelligent variation, and this was not adopted. The statement reads, as to the first part: “ Plaintiff states that he is lawfully entitled to the possession of one wagon, with shaft and tongue, of the value of $65 ; that the same was on * * * unlawfully taken and that the plaintiff’s right of action accrued within one year and is now wrongfully detained at the county aforesaid,” etc. This is neither a literal adherence to the form nor an intelligent variation from it.
As the averment was jurisdictional, the proceeding was properly dismissed. All the judges concur in affirming the judgment.