Barnes v. Plessner

• Decision Date: 11 May 1909
• Citation: 119 S.W. 457,137 Mo. App. 571
• Parties: BARNES v. PLESSNER.
• Court: Missouri Court of Appeals

119 S.W. 457

137 Mo. App. 571

BARNES v. PLESSNER.

St. Louis Court of Appeals. Missouri.

May 11, 1909.

1. APPEAL AND ERROR (§ 1097)—LAW OF THE CASE.

The decision of the court on appeal is law of the case on a subsequent trial.

2. REPLEVIN (§ 60)—RIGHT OF ACTION— WRONGFUL DETENTION OF PROPERTY.

Under Rev. St. 1899, § 3901 (Ann. St. 1906, p. 2156), providing that the statement of plaintiff in replevin must aver that he is entitled to the possession of the property described and that it is wrongfully detained by defendant, etc., replevin lies only against one wrongfully detaining the property, and the fact of its wrongful detention must be alleged and proved.

3. REPLEVIN (§ 93)—VERDICT—SUFFICIENCY.

Where, in replevin, the evidence proving that the property was in the possession and control of defendant was weak, a verdict finding that plaintiff was at the institution of the suit the owner and entitled to the possession of the property, but failing to find whether defendant detained it, was insufficient, though the court submitted the issue of unlawful detention in its instructions.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by John Barnes against Otto Plessner. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 121 Mo. App. 677, 97 S. W. 626 C. C. Fogle and E. R. McKee, for appellant. A. D. Morris and Smoot & Smoot, for respondent.

GOODE, J.

This is an action of replevin, instituted before a justice of the peace, to recover possession of certain household furniture. The case proceeded on appeal to the circuit court, and was there tried anew. The furniture in controversy had been purchased by plaintiff for George McClaskey. Plaintiff was conducting a blacksmith shop in the town of Coatesville, and McClaskey hired to him, boarding for a while in the town, but afterwards inducing Barnes to purchase this furniture, so McClaskey could bring his wife and child to him and go to housekeeping. The house rented by McClaskey belonged to Mrs. Plessner, wife of defendant. Barnes and McClaskey bought the furniture in Ottumwa, Iowa; the former paying for and turning it over to the latter with the understanding he was to use it as long as he worked for Barnes, and buy it from the latter when able. McClaskey and his family put the furniture into Mrs. Plessner's house, which they occupied for some months, and then McClaskey left Barnes' employ and the country. The latter wanted possession of his furniture, and, as Plessner and his wife refused to surrender it, the present action was instituted. The sole question for decision on the appeal is whether the verdict of the jury will support the judgment—a question which involves the circumstance that the action was instituted against Plessner, whereas the house where the property was belonged to his wife, and he insists the property was in her possession, and not in his. There was evidence which tended to prove Plessner really had possession of the premises and controlled...