Allison v. Darton

• Decision Date: 31 January 1857
• Citation: 24 Mo. 343
• Parties: ALLISON, Defendant in Error, v. DARTON, Plaintiff in Error.
• Court: Missouri Supreme Court

24 Mo. 343

ALLISON, Defendant in Error,

v.DARTON, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1857.

1. A finding of facts by a court, to authorize a judgment, must be a finding of the facts put in issue.

Error to Jackson Circuit Court.

Hovey, for plaintiff in error.

I. The court below did not find facts which constitute a wrongful detainer, but assert the legal conclusion that “defendant wrongfully detained said pony.” There is no finding of the facts. (See Practice Act, 1849, Art. 15, Sec. 2.)

II. The finding shows a total failure of proof of the charging part of the petition, and then makes a new case for the plaintiff below, of which defendant below had no notice. (See Link v. Vaughn, 17 Mo. 585; Beck v. Berrara, 19 Mo. 30; Egert v. Wickee, 10 How. Prac. R. 193.)

III. Where the original taking is not found to be unlawful, a demand and refusal must be found in order to constitute an unlawful or wrongful detainer. (See 2 Starkie on Ev. 839.)

Napton, for defendant in error.

I. The petition, in averring that defendant has not returned the same, although often requested so to do, is substantially an averment of a wrongful detainer, and the affidavit is in exact accordance with the statute. The finding of the court is responsive to this allegation, and the allegation of wrongful taking is altogether immaterial.

II. If the cause of action is held to be imperfectly or inartificially stated, the verdict cures the defects upon the presumption that the court or jury found all the facts essential to maintain the action. This could not be so if no cause of action at all was stated; but here is a good cause of action--the wrongful detainer, and the plaintiff's right of property and possession.

III. The facts charged in the petition are found, to-wit: that plaintiff was the owner and entitled to possession, and that defendant was in possession, and that his possession was wrongful. No greater degree of detail is requisite in the finding of a court than in the averments of a petition.

RYLAND, Judge, delivered the opinion of the court.

This was an action brought by Allison against Darton, in the Circuit Court of Jackson county, to recover a pony. The plaintiff in his petition alleged that on the 6th day of January, A. D. 1855, at the county of Jackson, the defendant, without leave, wrongfully took the following property of the plaintiff, and has not returned the same, although often requested so to do, that is to say, one white stud pony, four years old last spring; by which the plaintiff says he is damaged in the sum of sixty dollars, and asks judgment that said pony be delivered up to him by said defendant, and such other relief, etc.

The defendant appeared and filed his answer, denying that he took the pony without leave wrongfully, and denies that plaintiff is damaged to any amount whatever. He states that some time in November, A. D. 1854, one Thomas Leonard sent the white stud pony in controversy, with a lot of other ponies, to the house and farm of the defendant, to be kept, fed, and taken care of, and to be paid for what the same was reasonably worth; that defendant took charge and possession of the pony in question, together with the others, and kept, fed, and took care of, and remained in possession of the said white stud pony from the 3d day of November, A. D. 1854, until about the 9th day of January, A. D. 1855, at which time the pony was taken out of his possession by the sheriff of Jackson county, by virtue of the order and writ in this action. He stated that the keeping...