28 Mo. App. 1 | Mo. Ct. App. | 1887
This is an action of replevin for cattle, begun before a justice of the peace. Defendant prevailed below and plaintiff appeals. Plaintiff ’ s evidence tended to prove his ownership of the property and that he was entitled to the immediate possession thereof. The defendant undertook to justify his detention of the property under the stray law. The trial court’s rulings were against defendant on this branch of the case, and it is conceded that the case for defendant failed to show a compliance with the provisions of that law. There was also evidence for defendant tending to show that after the cattle came into his possession, plaintiff agreed with him to keep them for a stipulated price per month, thereby tending to establish in him a special property in the shape of an agister’s lien under the provisions of section 3196, Revised Statutes. This lien is such an one as may be waived by the party entitled to it. Besides, the claimant of such lien, if he means to abide by it, should assert it in unequivocal terms and not leave to conjecture whether he bases his detention of the property on account of his lien or some other ground. Instead of this we have the defendant disavowing any other lien than that given him by the stray law. He says, in his cross-examination, that “ all the claim I have to these cattle is under and by virtue of the stray or stock law. I base
As the only claim defendant made to the cattle was by an illegal proceeding under the stray law, the only question which should have been tried was plaintiff’s ownership. As owner, he would be entitled to the immediate possession, unless by reason of some intervening legal cause, which, as has been stated, was not shown to exist in this case.
The judgment is reversed and the causo remanded.