96 Mo. App. 698 | Mo. Ct. App. | 1902
On February 26, 1901, plaintiff instituted this suit before a justice of the peace for Clinton county, for the possession of two hundred and forty pairs of shoes of their own manufacture. Under the writ of replevin issued in the case, plaintiff obtained possession of the property. On the trial before the justice of the peace, the plaintiff company recovered judgment against both defendants, from which judgment the defendant Shepherd alone appealed to the circuit court of the county, where the case was again tried, the trial resulting in a verdict and judgment for the defendant Shepherd, from which the plaintiff has appealed to this court.
The plaintiff sought to recover on the ground that about the thirtieth day of October, 1900, a firm doing
At the beginning of the trial the plaintiff objected to the court proceeding with the case, upon the ground that it had acquired no jurisdiction by appeal, for the reason that the judgment of the justice was against two defendants to the suit, and one only, the defendant Shepherd, had appealed. The objection was overruled and the plaintiff excepted to the action of the court in overruling its objection. During the trial, a witness for the defendant (John Summers) was allowed, over the objection of plaintiff, to testify to the good reputation of M. A. Goff, a member of the firm of Goff Bros., who was also a witness for defendant. After the objection of plaintiff had been overruled, plaintiff’s attorney said: “His [Goff’s] reputation is good and we make no fight on him. Mr. Goff’s reputation for truth and veracity is good.”
The plaintiff relies on the following grounds for a reversal of the case: First, the error of the court in not dismissing the appeal from the justice’s court, for the reason that the defendant Shepherd alone could not take and prosecute such appeal. Second, that the-court committed error in allowing defendant to prove the good reputation of the witness M., A. Goff, as the same had not been assailed and put in issue by plain
If the plaintiff is right in the first instance, the circuit court had no jurisdiction by appeal, consequently this court has none, in which event we would not be authorized to pass upon the second and third assignment of errors. Among the earliest decisions of the' State, we find a case where it was held that one of two defendants might appeal from a judgment of a justice of the peace. Perry v. Block, 1 Mo. 487. See also Fagan v. Long, 30 Mo. 222. Section 4059, Eevised Statutes 1899, provides that, any person aggrieved by a judgment rendered by a justice of the peace, except a judgment by confession, may appeal. Unless an appeal could be taken by one defendant in a case where there was a judgment against several defendants, great injustice might be done. One defendant might be insolvent and unwilling to appeal, or he might be in collusion with the plaintiff in the judgment to prevent an appeal. .We have no doubt about the right of one defendant in such cases to appeal from the judgment of a justice of the peace.
Without deciding that it was inadmissible for defendant to prove the good reputation of this witness Goff, we hold that if there was any error in that respect, the plaintiff waived it, by its admission in open court, that the reputation of said witness for truth was good. We do not see how plaintiff could have been injured by an attempt on the part of the defendant to prove that which was admitted by the plaintiff to be true.
Defendant’s instruction No. 2 is unquestionably erroneous. It reads as follows: 1 ‘ The court instructs the jury that plaintiff seeks to recover in the case upon the grounds that Goff Bros, made false and fraudulent representation to them as to their financial ability to pay for the goods. If they, therefore, believe from the evidence that the firm of Goff Bros, made no statement to the defendant as to their financial ability to pay for the same, then your verdict must be for the defendant,