City of Mexico v. Jones

• Decision Date: 07 November 1887
• Citation: 27 Mo.App. 534
• Parties: CITY OF MEXICO, Appellant, v. EUGENE E. JONES, Respondent.
• Court: Kansas Court of Appeals

27 Mo.App. 534

CITY OF MEXICO, Appellant, v. EUGENE E. JONES, Respondent.

Court of Appeals of Missouri, Kansas City.

November 7, 1887

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

The case is stated in the opinion.

F. C BRYAN, for the appellant.

I. The only question before the court is, whether the evidence introduced by plaintiff entitled it to have its case submitted to the jury. If the plaintiff's evidence has no tendency, whatever, to prove the facts necessary to recovery the court may take the case from the jury. Boland v Railroad, 36 Mo. 484. But if there is any evidence however slight it may be, and whether direct or inferential, it must go to the jury, who are exclusive judges of its weight and sufficiency. Emerson v. Sturgeon, 18 Mo. 170; Rippey v. Friede, 26 Mo. 523; McFarland v. Bellows, 49 Mo. 311; Williamson v. Fisher, 50 Mo. 198; Wilson v. Board of Education, 63 Mo. 137; Grant v. Railroad, 25 Mo.App. 227.

II. A demurrer to the evidence admits every fact which any of the evidence tends to prove, and also every fact that the jurors may, with propriety, infer from the evidence before them. It should be allowed only when the evidence thus considered wholly fails to make proof of some essential averment. Noeninger v. Vogt, 88 Mo. 589.

III. The fact that the court sat as a jury on the trial of the cause, does not take the case out of the rule laid down in the preceding points of this brief; for if we admit that the evidence of the plaintiff was not strong, yet if it had been in nowise contradicted by defendant's testimony, plaintiff would be entitled to a verdict.

PINDALL & KENNAN, for the respondent.

I. The evidence was not sufficient to show a dedication. Landis v. Hamilton, 77 Mo. 554; Brinck v. Collier, 56 Mo. 161.

II. This is a criminal prosecution. The criminal law cannot be invoked for redress of private grievances. Dawson v. State, 52 Ind. 478; Hughes v. State, Ind., Oct. 28, 1885; 1 West. Rep. No. 54, p. 544. In the case at bar, as in that case, the evidence in the record shows the controversy involved in the case is one which ought to be determined by an appropriate civil action, and not by resort to a criminal prosecution. One party should not be permitted to place another under the bar of a criminal to try a civil action.

III. The pretense of the city, as disclosed by its evidence, is about this: There was an alley running east and west through block seven. An effort appears to have been made to change the direction of this alley from east and west to north and south. (1) It appears that the city has never closed the west end of the alley east and west, but continues to keep it open and work it. It is claimed that the Lowry heirs' deed to the city was for six feet off of the west part of the east half of the block, and that the six feet in controversy had been dedicated to the city. The city relies upon Norris' statement that he consented to the alley whilst he owned the land, and so told Jones to whom he sold; but he don't state how he expressed his consent; yet, on cross-examination, he says that he made Jones a warranty deed and that he, in writing, directed his conveyancer to draw it so. Hence, the telling act of Norris was his warranty deed. The mere verbal promise to dedicate cannot prevail over a warranty deed. The deed from Lowry heirs was made in 1879 six years after Norris had conveyed to Jones; and even that deed appears to be upon the consideration that the county court vacate the alley running east and west (now up to the execution of this deed there is no pretext of a dedication). As we have seen, the city never has closed the alley running east and west, but still keeps it open and works it. If the agreement of Norris is valid at...