158 Mo. App. 648 | Mo. Ct. App. | 1911
Plaintiff commenced this action before a justice of the peace of the proper township of Pemiscot county, to recover possession of 30,000 feet of saw logs, plaintiff filing a bond with sureties, as provided by law. The logs were taken out of the possession of .defendants-by the constable and delivered over to plaintiff. On the return day, of the summons, defendants appeared and filed their affidavit under oath, to the effect that the logs replévied
At the close of this testimony on behalf of plaintiff, defendants interposed a demurrer, ore terms, which the court sustained. Plaintiff thereupon asked leave to offer a deposition of- the defendant Mrs. Campbell which the court refused to allow. That deposition was on file in the case and had been taken by defendants. It is in the abstract. In that deposition Mrs. Campbell testified that the timber in controversy was hers; that it came off of land she was in possession of as a homestead and as doweress of her husband; that the particular piece of land off of which the timber came is a part of a farm on which she now lives and on which she had lived ever since her husband’s death. She
After sustaining the demurrer and declining to allow plaintiff to introduce this deposition in evidence, the court entered up judgment as follows (after reciting the fact of the trial and that it had been submitted to the court by agreement of parties, without a jury, and the fact of the interposition of the demurrer to the testimony and its being sustained):
“It is therefore considered and adjudged by the court that the plaintiff was at the time of institution of this suit and is now not entitled' to the possession of the property sued for by plaintiff, to-wit: 3 sycamore logs, 25 cypress logs, 48 red gum logs, 29 elm logs, 20 cottonwood logs, and 20 ranks of ash stave bolts and that judgment be for the defendants, and against the plaintiff and against Otto Kochtitzky and J. T. Warren, sureties in the replevin bond filed by the plaintiff herein'for the above described property; and it is hereby adjudged that plaintiff return to defendants the said property taken by plaintiff together with their costs and charges in this behalf expended and that they have thereof execution against plaintiff and its said securities.”
In due time plaintiff interposed its motion for a new trial and that being overruled perfected appeal' to this court. The motion for new trial alleges as grounds that the verdict and decision of the court is against the evidence and the weight thereof, against the law as applied to the evidence; that the court excluded competent, relevant and material 'evidence
In this court ten assignments of error are made: First and second, that the verdict is against the evidence, the weight of the evidence and the law as applied to thé evidence; third and fourth, error in excluding the deposition of Mrs. Campbell; fifth, in sustaining the oral demurrer to the evidence at the close of plaintiff’s testimony; sixth, error in ignoring the agreement between appellant and respondents in rendering the judgment in this case; seventh, the judgment entered is in violation of the contract and contrary to the statute; eighth, error in overruling motion for a new trial; ninth, the judgment and finding is'not supported by equity and is against the evidence and in violation of the statute controlling judgments in replevin suits; tenth, under the evidence in the case the judgment should have been for appellant and that entered is in conflict with the evidence and with the law and in conflict with the equity of the case.
Without noticing the assignments of error in detail, it is to be remembered that the only motion interposed was a motion for new trial, a motion in arrest not having been filed. The motion for a new trial does not go to errors of record; those are to be reached by motion in arrest, so that the form of the judgment is not open to review.
It is apparent from the statement of facts which we have made, that there' was no answer interposed by defendants nor any formal pleading of any kind by them, unless .the affidavit for certification to the circuit court, and which we have set out in its substantial parts, is to be so held, as is argued by counsel for respondents. This-court, in the case of Cartmell Machine Co. v. Sikes, 83 Mo. App. 565, held that the
It has been many times decided by our Supreme and appellate courts, that in appeals from justices of the peace to the circuit court, the power of the circuit court over the cause is derivative, and that unless the justice pf the peace before whom the cause was in
Equally untenable is the proposition made that the demurrer to the evidence at the close of plaintiff’s testimony should have been in writing and could not be considered because made orally. It has been a very common practice in this state for many years, to interpose a demurrer to the testimony at the close of plaintiff’s case, or at the close of the whole ease, ore tenus, when the case is tried before the court without a jury, as was done here. Instructions must, be in writing but none need be given when the trial is before the court without a jury, as was the case here. Moreover, the abstract of the record in this case, while very full, fails to show that any objection was made by plaintiff in the lower court to the demurrer being interposed orally or any demand made that it be reduced to writing.
That demurrer having been interposed and sustained, plaintiff then offered to read in evidence a deposition of one of the defendants, Mrs. Campbell. This was objected to, no grounds of objection being stated, and the objection sustained. We are therefore not advised of the ground upon which.the learned trial court acted. If its action can be sustained on any legal ground, that must be done. It may be said that the. deposition was properly rejected on the ground that no reason appeared for the non-appearance of the deponent in court. It appears by the certificate of the justice of the peace before whom the deposition was taken, that she was a resident of the county, hence within the power and reach of the process of the court, and there is no reason shown why she was not present, or subpoenaed to appear. That she was a party defendant did not change this rule, as her deposition was not offered as an admission by a party to the suit. • It was offered simply as would be the deposition of any other witness. Waiving that, however, and conceding
It is complained that the court, in making the finding and rendering the judgment in the case, disregarded the agreement made between the parties, to the effect that the logs in controversy should be sold and the proceeds held subject to the determination and outcome of this case. We do not understand that this judgment, as entered up, at all disregards that agreement. This agreement was outside of the case entirely and made, not only after its institution, but after its certification to the circuit court, and it was distinctly a part of that agreement that the cause, that is, the replevin action as such, should be proceeded with. In that action no judgment except one awarding the possession of the property in the plaintiff or of adjudging it in defendants, beyond an assessment of damages and costs, was possible. So that if that is a valid agreement and covers this fund or covers these particular logs here in controversy, the judgment here rendered does not preclude parties to it from carrying it out. As we understand the matter, however, the object the parties had in view was, outside of and even under the agreement, to determine by the prosecution of this action for replevin the right of ownership and possession of the logs in controversy. There is no pretense that any agreement, enforeible in this action
The form of the judgment is criticised by counsel for appellant as being entirely unwarranted by the statute, it being contended that the value of the property and damages for its detention are not found and assessed. We are unable to concede this. Although the judgment is informal, we think, as the ease was presented to the court by the parties themselves, neither party giving any evidence whatever as to the value of the property, that for all practical purposes it is sufficient and meets the statute. It is a judgment awarding the right of possession to defendants, holding plaintiff and its sureties responsible for the return of it to him and awarding costs to defendants. That the value of the property was not assessed or damages found, is not material. The verdict finds that the property belonged to defendants, and so the judgment went and that is all that was adjudged. An assessment of the value or of damages would have been for the benefit of defendants. They do not complain: plaintiff cannot. [Caldwell v. Ryan, 210 Mo. 17, l. c. 22, 108 S. W. 533.]
The judgment of the circuit court is affirmed.
Note by Reynolds, P. J. — When the affidavit that title Is Involved is filed, the justice loses jurisdiction over the subject-matter. _ Ordinarily the parties would then go out of court. But the statute intervenes and prevents this, .commands that the cause be thereupon certified to the circuit court, where it proceeds as if originally instituted in that court. Herein lies the difference between a case taken by appeal and one so certified.