81 S.W. 1183 (Mo.App. 1904), Walker v. Robertson
|Citation:||81 S.W. 1183, 107 Mo.App. 571|
|Opinion Judge:||SMITH, P. J.|
|Party Name:||MARVIN WALKER, Appellant, v. WILLIAM ROBERTSON, Respondent|
|Attorney:||Hudson & Dubois for plaintiff. A. W. Kelso and Schooler & Lingenfelter for respondent.|
|Case Date:||June 20, 1904|
|Court:||Court of Appeals of Missouri|
Appeal from Worth Circuit Court.--Hon. Gallatin Craig, Judge.
(1) The court erred in giving instruction 1 on the part of the defendant, submitting to the jury the question of ownership of the property in controversy when it is admitted by the record that plaintiff was and is the owner of same. State ex rel. v. Henderson, 86 Mo.App. 482; Marr v. Bunker, 92 Mo.App. 661; R. S. 1899, sec. 1575; Goldsmith v. Taussig, 60 Mo.App. 463; Cole v. Railroad, 21 Mo.App. 443. (2) The jury arbitrarily found for the defendant against the law and the evidence. Hartt v. Leavenworth, 11 Mo. 630; Moore v. Hutchinson, 69 Mo. 429; Robbins v. Phillips, 68 Mo. 100; Whitsett v. Ransom, 79 Mo. 258; Garrett v. Greenwell, 92 Mo. 125; Meier v. Proctor & Gamble, 81 Mo.App. 410. (3) The verdict is not responsive to the issues raised in the case. Kenney v. Railroad, 79 Mo.App. 209; Fulkerson v. Dinkins, 28 Mo.App. 160; Cole v. Armour, 154 Mo. 333. (4) The judgment is fatally defective in making no disposition of the property in controversy. 2 McQuillin's Pl. and Pr., sec. 1961; Nichols v. Lead & Zinc Co., 85 Mo.App. 584; Clinton v. Stovall, 45 Mo.App. 642; R. S. 1899, sec. 1552; Hecht v. Heiman, 81 Mo.App. 370.
(1) It is a fundamental principle of law that a party can not in an appellate court take advantage of his own act in the trial court for the purpose of reversal, that is, he can not proceed upon one theory in the trial court and upon an appeal be heard to say that because the court permitted him so to do the cause should be reversed. Hall v. Goodnight, 138 Mo. 576; Hayes v. Bunch, 91 Mo.App. 467; Bensieck v. Cook, 110 Mo. 173; Guntley v. Stead, 77 Mo.App. 155; Baker v. Railroad, 122 Mo. 533; Christian v. Ins. Co., 143 Mo. 460; Water Co. v. Neosho, 136 Mo. 508; Berkson v. Railway, 144 Mo. 211. Any other course would invite insincerity by lawyers and litigants, and while the course taken by them in the trial may really have been inconsistent with the pleadings, yet they must pursue it. Hill v. Drug Co., 140 Mo. 433; Pope v. Ramsey, 78 Mo.App. 157; State to the use of O'Neil, 151 Mo. 67; State ex rel. v. Henderson,...
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