37 Mo. App. 680 | Mo. Ct. App. | 1889
Lead Opinion
This is an action of replevin instituted in the circuit court of Jasper county. The defendant’s answer was a general denial, and, as a further defense,
The writ of attachment was issued and executed on Sunday, and was therefore void, and affords no justification to the officer. Section 1054, Revised Statutes, authorizes the issuance and service of writs on Sunday in cases of attachments “where a debtor is about fraudulently to secrete or remove his effects.” But the affidavit should so state, in order to authorize the issuance or service of the writ.
Here, the affidavit is not that the defendant is about to secrete or remove his property, but that he has disposed of it. Section 4039, Revised Statutes, does not relieve defendant; for that section only authorizes the officer to serve a writ of attachment in a like case provided for in section 1054. We have been cited to State ex rel. Lemon v. Rucker, 19 Mo. App. 587, but we think it has no application to the case at bar.
II. Notwithstanding defendant has no right or authority to keep possession of the property, it does not follow that plaintiff is necessarily entitled to recover. She must show property, general or special, in herself. It is true that in the absence of other evidence, and as against a trespasser or wrong-doer, a lawful possession will support the action of replevin (Smith v. Lydick, 42 Mo. 209); but in this case, plaintiff was not in the possession of the property at all at the time
III. The verdict of the jury included the entire property replevined. Plaintiff, as a witness at the trial, disclaimed ownership to a portion of it, and it was therefore error in the court to sustain a verdict for that portion. Spooner v. Railroad, 23 Mo. App. 403. A verdict in replevin, involving the ownership of property consisting of a variety of articles, may be in favor of plaintiff for a part and defendant for the remainder; or, as it has been sometimes expressed, may be in favor of both parties. Wells on Replevin, sec. 744.
IY. It is next contended that, as appellant has not set out in his abstract the motion for new trial, we should treat the case as though none had been filed. I do not think this is a correct interpretation of rule 15. That rule only requires the abstract to set forth so much
the judgment is reversed, and the cause is remanded.
Rehearing
ON MOTION NOB REHEARING.
If Moss was plaintiff’s agent, he being in charge of the property as such agent, under instructions from her and attempting'to get it out of the state, she telling him to drive fast, his declarations when overtaken as to the ownership of the property, and where he was then taking it, are apart of the res gesta and are admissible. They are, in effect, the declarations of plaintiff herself. They do not relate to past transactions but to what was then depending.
Greenleaf in section 113, volume 1, of his work on evidence says, that wherever what the agent did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it. The cases cited from this state of Ladd v. Couzins, 35 Mo. 516; Adams v. Railroad, 74 Mo. 556; Bevis v. Railroad, 26 Mo. App. 21, sustain, instead of controvert, what was stated in the opinion.
Questions concerning Moss’ declaration should be restricted to what he said and did in reference to the matter at issue, at the time he was overtaken.
The motion will be overruled.