27 Mo. App. 21 | Mo. Ct. App. | 1887
This is an action of replevin for the recovery of a lot of cigars, etc. The value of the goods is alleged in the petition to be $214.00, and the affidavit for the taking of the goods under the delivery bond, alleged the value to be $214.60. The defendant, as sheriff, seized the goods under a writ of execution against Isaac Mayer and David Mayer, sued as partners. The answer averred property in said Mayers, and charged that the plaintiff was in fraudulent collusion with Mayers
I. There were no instructions asked, and no exceptions saved to the introduction of evidence. There are no errors of law for this court to review. Cunningham v. Snow, 82 Mo. 587; Tyler v. Larimore, 19 Mo. App. 458. In such case, if there was any evidence to support the verdict, it must- stand. We have examined the record, and find there was some evidence to support the finding of the jury. In such case we will not weigh the evidence. It was for the jury to infer the existence of fraud, and determine the ownership of the property in question, from all the facts and circumstances in evidence. We will not invade the province of the jury.
It is assigned for error that the assessed value of the property is excessive. It is conceded to the contention of the appellant that the assessment must bq based upon the value at the time of the trial. The affidavit made by the plaintiff on the first day of September, 1885, stated the value of the property to be $214.60. The contention of appellant is, that this affidavit has reference to the value of the property at the time the suit was brought, or when the goods were taken by the defendant. This is not tenable. The affidavit is in the present tense, and says the property is of the value of $214.60, at the time the affidavit was made. Any deterioration of the goods, consequent upon the manner of keeping the same by the sheriff, had occurred prior to that time.
It was competent for the jury to find the value of the goods predicated upon the sworn statement of the plaintiff, making allowance for any difference between that date and the day of trial. The affidavit was made on the first day of September, and the trial had the first of the following January. There was nothing to indicate any depreciation in the value in the meantime. The plaintiff cannot complain that the jury accepted his own sworn statement when he was suing out his writ of
The judgment of the circuit court must be affirmed.
