Fulkerson v. Dinkins

• Decision Date: 05 December 1887
• Citation: 28 Mo.App. 160
• Parties: JAMES P. FULKERSON, Appellant, v. CHAPMAN DINKINS, Respondent.
• Court: Kansas Court of Appeals

28 Mo.App. 160

JAMES P. FULKERSON, Appellant, v. CHAPMAN DINKINS, Respondent.

Court of Appeals of Missouri, Kansas City.

December 5, 1887

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed and remanded.

The case is briefly stated in the opinion of the court.

SAMUEL P. SPARKS, for the appellant.

I. The defendant justified his right to restrain the cattle in controversy by virtue of the provisions of an act to restrain domestic animals from running at large (Sess. Laws, 1883, pp 24, 26, 28), and the burden was upon him to prove its adoption, in the manner provided in the act, by the voters of Johnson county. Sess. Laws, 1883, pp. 26, 28. But the record of the county court failed to show that the notice of the submission to the voters was ever posted, or published, as required by the act, and as directed in the order of the court, without which there could be no valid submission or adoption of the act. Sess. Laws, 1883, supra, sect 8. The act further required the clerk to give notice of the result of the election, by advertisement in a weekly newspaper, and further posting up notices, in three public places, in each of the townships; none of which acts were done, according to the uncontradicted testimony in the case. Sess. Laws, 1883, supra, sect. 10. It follows that the act to restrain domestic animals from running at large (Sess. Acts, 18??3) never was in force in Johnson county because the law was not complied with in its submission to the voters.

II. The verdict was not responsive to the issues, and not such as the jury were required, under the law, to return. The verdict should have found the value of the property, or the interest of the defendant therein. State ex rel. v. Dunn, 60 Mo. 64; White v. Van Houten, 51 Mo. 577; Rev. Stat., sect. 3854; Foster v. Robbins, 20 Mo.App. Each party has a right to the verdict of the jury upon all the issues presented, and if it is not relevant to the issues, or erroneous, the court may set aside, but cannot change it. Wells on Replevin, sect. 741.

A. B. LOGAN, for the respondent.

I. Appellant, having consented to try his cause before a jury, upon one theory, cannot now urge another and different one in this court.

II. The verdict of the jury and the judgment of the court was responsive to the issues presented to them, by the consent of both parties. It determined every question in issue between the parties.

III. The judgment was for the right party, upon the issues submitted to the jury.

IV. The county court was the only tribunal having jurisdiction to determine whether the stock law had been adopted. It having so declared by its judgment of record, and issued its proclamation to that effect, it was conclusive and binding upon the parties to this cause, until reversed or set aside.

ELLISON J.

This is an action of replevin, commenced before a justice of the peace. Plaintiff lost in both lower courts, and brings the case here by appeal. The defendant claims a special interest and right of possession of the property under the stock law of 1883. Acts, 1883, p. 26. The property was...