Eichelmann v. Weiss

• Citation: 7 Mo.App. 87
• Parties: JOSEPH EICHELMANN, Respondent, v. MATTHIAS WEISS ET AL., Appellants.
• Decision Date: 15 April 1879
• Court: Missouri Court of Appeals

7 Mo.App. 87

JOSEPH EICHELMANN, Respondent,

v.MATTHIAS WEISS ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 15, 1879.

1. It is error to receive and render judgment upon a verdict which does not find the issues as to all the defendants.

2. In the absence of aggravating circumstances, in trespass for selling property on execution against another, consequential damages cannot be recovered.

3. The special act concerning sheriffs and marshals is still in force in the city of St. Louis, notwithstanding the separation of city and county.

4. A claim under that act may be good, though informal, if the officer treats it as valid, and takes a good bond in consequence.

5. The taking of a good bond under an informal claim relieves the officer; and where the first claim omitted to state value, and a bond for $250 was taken under it, and a second claim was filed valuing the property at $300, and an appraisement was had fixing the value at $122, the first bond, being sufficient under the law, will protect the officer.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

AUGUST REBENACK, for appellants: It was error to allow consequential damages in this action.-- Flaherty v. Taylor, 35 Mo. 447; Smith v. Way, 9 Allen, 472; Bennett v. Hood, 1 Allen, 47; Norton v. Doherty, 3 Gray, 372; Burnett v. Smith, 4 Gray, 50. The bond taken by the officer protected him.-- Bradley v. Halloway, 28 Mo. 150; The State v. Watson, 30 Mo. 122. The verdict was informal and fatally defective.-- Schweickhardt v. St. Louis, 2 Mo. App. 582.

EBER PEACOCK, for respondent.

BAKEWELL, J., delivered the opinion of the court.

The petition in this cause has two counts. The first alleges that the defendants took from the possession of the plaintiff, by force and unlawfully, certain personal property, worth $500, belonging to the plaintiff, so that the same was lost to him. Damages to the amount of the value of the property are asked. The second count alleges the same trespass, and asks for $500 damages for injury to the business of the plaintiff, who kept a bar-room and grocery, the furniture of which composed the property seized.

It appears from the pleadings and evidence that the defendant Grund, at the date of the alleged trespass, was a constable of St. Louis Township, and that he seized and sold the property described, in the city of St. Louis, at the request of his co-defendants, by virtue of an execution in their favor against one Thaunfetter. The plaintiff, at the time, was the real owner of the property, having purchased the same from Thaunfetter's wife, who was trading by herself, having been abandoned by her husband, and whose separate property the goods were at the date of the sale to the plaintiff. The goods never belonged to the defendant in the execution. The defendants, however, acted in good faith; the execution creditors believing that the goods had belonged to Thaunfetter, and the constable acting by their direction. On May 31, 1877, the levy was made. The goods were claimed on that day by the plaintiff. The claim was in writing, but did not comply with the statute, in that it did not give the value of the property claimed. The defendants Weiss and Obert then gave bond in the sum of $250 to indemnify the constable. On June 2, the constable removed the property. A second claim was then made, stating the value at $300. The constable then demanded a bond for $600. His co-defendants objected; an appraisement was had at their request, which fixed the value at $122, and the constable proceeded with the sale. The property brought $117, which was applied on the execution. The jury returned the following verdict: “We, the undersigned, jury in the case of Joseph Eichelmann v. Louis Obert, Matthias Weiss, and Louis Grund, find for the plaintiff, and assess damages against Louis Obert and Louis Grund for $400 on the first count and $100 on the second count.” The defendants bring the cause here by appeal.

Judgment was entered against Obert and Grund for $500. The verdict is imperfect, and should not have been received. The whole issue is not tried. The cause was not dismissed as to Weiss, and there is no verdict and no judgment as to him. This is substantial error. The defendants, if liable, are jointly liable, and subject to contribution; and those against whom judgment was rendered have a right to have the question determined whether Weiss is to bear any share of the burden; and being prejudiced by the error, may take advantage of it. This has been repeatedly adjudged, and was determined by this court in a case recently decided. Schweickhardt v. St. Louis, 2 Mo. App. 582.

As the case must go back for retrial, it is proper to say that it seems to have been tried on incorrect theories of the law in more than one respect.

In the absence of aggravating circumstances (and there seem to have been none in this case), there could be no recovery on the second count, because in trespass for selling property under...