Pettingill v. Jones

Citation30 Mo.App. 280
PartiesH. F. PETTINGILL et al., Respondents, v. P. M. JONES, Appellant.
Decision Date10 April 1888
CourtCourt of Appeal of Missouri (US)

APPEAL fro the Greene Circuit Court, HON. W. D. HUBBARD, Judge.

Judgment modified.

F. S HEFFERNAN and JAS. R. VAUGHAN, for the appellant: The court of its own accord, and without plaintiffs' request, and against defendant's objection, submitted two special findings to the jury, which was error, as shown by the statute on that subject and the decisions of this court. Sess. Acts, 1885, p. 214. There should have been a verdict for or against plaintiff Pettingill. The court erred in its instructions to the jury with reference to their verdict virtually telling them that there need be no finding as to plaintiff Pettingill, and erred in receiving the verdict as rendered. McCord's Adm'r v. McCord, 77 Mo 175; Ferguson v. Thatcher, 79 Mo. 511; Eichelman v. Weiss, 7 Mo.App. 87; Schweickhardt v. St. Louis, 2 Mo.App. 582. Whenever the party averring the fraudulent sale shows that the sale was fraudulent, or offers evidence sufficient to take the case to the jury on that theory, then the burden of showing a consideration paid and the want of notice devolves upon the party claiming that his purchase was for value and in good faith. Whenever a prima-facie case of fraud is made, the law, in the absence of anything to the contrary, will presume that all the facts and circumstances attending the sale are known to the purchaser. Halsa v. Halsa, 8 Mo. 303; Bishop v. Schneider, 46 Mo. 482; Johnson v. McMurry, 72 Mo. 278; Carson v. Porter, 22 Mo.App. 179.

J. M. PATTERSON, for the respondents.

OPINION

ROMBAUER P. J.

This action is in replevin and the controversy turned upon the point whether the plaintiff Moore was a purchaser in good faith of the property from one Hazen, the debtor in the attachment writ under which the goods were seized by the defendant constable, as Hazen's property, at the instance of his creditors. An additional point arose touching the question whether the plaintiff Pettingill had any interest in the property at the date of the institution of the suit.

The jury, under the instructions of the court, found a verdict in favor of plaintiff Moore in the following words: " We, the jury, find the issues for the plaintiff, B. F. Moore," and in answer to certain interrogatories propounded to them further found that Pettingill had, neither at the date of the institution of the suit, nor at the date of the trial, any interest in the property in controversy.

The court, by inadvertence, failed to enter judgment upon the verdict when rendered, but at the succeeding term, upon motion of the plaintiff and without objection or exception on the part of defendant, entered the following judgment, nunc pro tunc: " And now on this nineteenth day of May, 1887, come the parties hereto by their respective attorneys, and the jury having by their verdict rendered herein found the issues in favor of said plaintiff B. F. Moore, and it appearing that said plaintiff by his writ of replevin has obtained possession of the property in controversy in this suit, to-wit: One yoke of oxen about eight years old, one of a dun color with white face, the other of a black and white color, also two log wagons: It is now, therefore, considered and adjudged by the court that said plaintiff B. F. Moore have and retain the possession of said described property, he being adjudged the owner thereof at the institution of this suit and entitled to such possession, and it is further considered and adjudged by the court that said plaintiff have and recover of the defendant his costs and charges in and about this suit laid out and expended and remaining unadjudged, and that he have execution therefor."

The defendant appealing assigns for errors that the court excluded proper evidence offered by defendant consisting of statements made by witness Bolen; that the submission of special issues by the court of its own accord was error; that the verdict was informal and the judgment rendered thereon erroneous in making no disposition of plaintiff Pettingill, and that the instructions of the court on the question as to where the burden of proof lay on the question of fraud was erroneous.

The defendant's first exception may be passed with the remark that the record fails to show that any part of Bolen's deposition was excluded, and that the exception finds no support by anything appearing in the record.

The defendant's second exception is not well taken, because regardless of the fact whether the case was a proper one for the submission of special issues, it is not apparent how the error, if any, was prejudicial to the defendant. It is not claimed...

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11 cases
  • Moffett v. Commerce Trust Co.
    • United States
    • United States State Supreme Court of Missouri
    • 11 Febrero 1946
    ......1062;. Baldridge v. Ryan, 260 S.W. 537; Pomeroy on Code. Remedies (5 Ed.), p. 214; Powell v. Banks, 146 Mo. 620, 48 S.W. 664; Jones v. K.C.F.S. & M. Ry. Co., . 178 Mo. 528; Walker v. Lewis, 140 Mo.App. 26;. State ex rel. Chick v. Davis, 273 Mo. 660;. Meierhoffer v. Hansel, 294 Mo. 195; Pettingill. v. Jones, 30 Mo.App. 280; Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185. (7) The circuit court. was without jurisdiction to sustain the ......
  • Mansur & Tebbetts Implement Company v. Jones
    • United States
    • United States State Supreme Court of Missouri
    • 15 Marzo 1898
  • State ex rel. Robertson v. Hope
    • United States
    • United States State Supreme Court of Missouri
    • 22 Diciembre 1890
    ...... Allgaier, 88 Mo. 598, 604; Bonney v. Taylor, 90. Mo. 63, 67; Hazell v. Bank, 95 Mo. 60, 65; Hard. v. Foster, 98 Mo. 297, 313; Pettingill v. Jones, 30 Mo.App. 280, 283; Deering v. Collins, . 38 Mo.App. 80, 88; Morgan v. Wood, 38 Mo.App. 255,. 270. (5) And in this state, it must ......
  • Robinson v. Heiser
    • United States
    • United States State Supreme Court of Missouri
    • 3 Noviembre 1939
    ...63 Mo.App. 212; Williams v. Casebeer, 53 Mo.App. 640; Martin v. Fox, 40 Mo.App. 664; Deering v. Collins, 38 Mo.App. 73; Pettingill v. Jones, 30 Mo.App. 280; 14 Amer. & Ency. Law (2 Ed.), 486. (2) Question of fraud cannot be left wholly to conjecture. Evidence which raises a mere suspicion o......
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