4 S.W. 441 (Mo. 1887), Garrett v. Greenwell

• Citation: 92 Mo. 120,4 S.W. 441
• Date: 16 May 1887
• Docket Number: .
• Parties: Garrett, Appellant, v. Greenwell, Administrator
• Court: Missouri Supreme Court

Page 441

4 S.W. 441 (Mo. 1887)

92 Mo. 120

Garrett, Appellant,

v.

Greenwell, Administrator

Supreme Court of Missouri

May 16, 1887

Appeal from Montgomery Circuit Court. -- Hon. Elijah Robinson, Judge.

Reversed.

John M. Barker for appellant.

(1) The action of the court, in excluding from evidence or exhibition to the court the record of the judgment for appellant on the trial of the issue of attachment, was erroneous, because the facts involved in the attachment were fully tried before a jury and were finally settled. Defendant made no effort to have said trial reviewed, as he might have done under section 439, Revised Statutes, 1879. These questions were res adjudicata, and have been so expressly decided in Stewart v. Nelson, 79 Mo. 522. And such is the law in regard to any fact in issue, at a prior trial. Hasty's Heirs v. Berry, 1 S.W. 8; Nelson v. Bevens, 28 N.W. 331. And whether litigated or not, if disclosed in the pleading. Kurtz v. Carr, 5 N.E. 692; Radford v. Folsom, 3 F. 199; Brooks v. O'Harra, 8 F. 529. (2) The court erred in excluding the testimony of George Vickery as to the words, actions and conduct of Jolioh and wife, as he was passing their house. 1 Greenleaf Evid., sec. 177; 3 Taunt. 80; Allen v. McKeen, 1 Sumn. 314. (3) The court erred in giving instructions to the jury. (4) The court also committed error in refusing a new trial on the weight of the evidence.

T. J. Powell and E. M. Hughes for respondent.

(1) The court rightly refused to permit the reading in evidence of the attachment judgment. The very nature of a plea in abatement forbids the idea that a judgment therein concludes anything, except as to whether the writ of attachment was properly sued out. (2) The court did not err in the matter of refusing to permit George Vickery to testify as to what Mrs. Jolioh, the wife of the deceased defendant, said to witness; her declarations constituted no proof against him. (3) The instructions given by the court were proper. (4) The weight of the evidence in this case is clearly in favor of defendant, but if it were not, nothing is better settled than that this court will not reverse a judgment on the ground that the verdict is against the weight of the evidence.

OPINION

[92 Mo. 122] Sherwood, J.

There are two counts in the petition; the first charges that Jolioh wilfully, maliciously and wantonly, intending to injure the plaintiff, set fire to and burned the plaintiff's property, a threshing machine, belt and separator of the value, etc. The second count was of similar purport, double damages being asked under the provisions of section 3928, Revised Statutes,

Page 442

an affidavit and bond being filed with the petition, in conformity with that section, and the provisions of the attachment law. Jolioh, having died, his administrator was made party defendant, and on his plea in abatement a trial of the issue thus raised was had, resulting in a verdict for the plaintiff, which was followed by the statutory judgment sustaining the attachment. Thereupon the defendant administrator filed a general denial, [92 Mo. 123] and at the next term, on the issue thus presented, the verdict was for the defendant and judgment accordingly.

I. There was no error in the trial court refusing to permit the plaintiff to offer in evidence the record of the proceedings in the trial of the...