Beagles v. Beagles

• Citation: 95 Mo. App. 338,68 S.W. 758
• Court: Court of Appeal of Missouri (US)
• Decision Date: 27 May 1902
• Parties: BEAGLES v. BEAGLES.<SMALL><SUP>1</SUP></SMALL>

68 S.W. 758

95 Mo. App. 338

BEAGLES v. BEAGLES.¹

Court of Appeals at St. Louis, Missouri.

May 27, 1902.

REPLEVIN — JUDGMENT — RETURN OF PROPERTY — HUSBAND AND WIFE.

1. A husband, separated from his wife, brought replevin against her for household goods in her possession, and obtained them on an order of delivery in usual form. The petition made no allusion to their marital relation. Her answer set it up, asserted her ownership of the property, and demanded its return. Plaintiff then dismissed the case, and the trial court declined to render judgment for the wife for the return of the property or its value. It is held that defendant is entitled to a judgment against the plaintiff for the return of the property, etc., as though the parties were not husband and wife.

2. A married woman as defendant at the suit of a stranger may have the usual judgment in replevin, just as she may maintain an action in her own name to recover her separate statutory property against a stranger. A married woman sued by her husband in replevin is entitled to a statutory judgment, in the same circumstances as any other suitor.

3. The statutory estate vested in a married woman by the laws of Missouri is a legal estate, and, when her right to the possession of personal property is invaded as described in the first headnote above, she may have a judgment in replevin against her husband, as against any other person in like circumstances.

4. The laws protecting the separate property of married women, and giving them the right to sue as if sole, are reviewed by the court. They are held to be enabling or remedial acts, and to be fairly construed so as to accomplish the purpose of their enactment.

5. When plaintiff in replevin fails to prosecute the action with effect, and has the property, and defendant, by answer, demands its return, defendant is entitled to judgment against plaintiff and his surety for the property or its value, together with damages and costs.

6. A party to a suit is estopped from repudiating the position he takes as a litigant. This rule is held to apply both to husband and wife (as to her separate property) in their litigation with each other and with strangers.

7. The court distinguished the case at bar from Ilgenfritz v. Ilgenfritz (K. C.) 49 Mo. App. 127.

(Syllabus by the Judge.)

Appeal from circuit court, Audrain county; Elliot M. Hughes, Judge.

Action by James M. Beagles against Mary B. Beagles. Judgment for plaintiff. Defendant appeals. Reversed.

P. H. Cullen, for appellant. Fry & Clay, for respondent.

BARCLAY, J.

Plaintiff and defendant are husband and wife. They were living apart, pending a suit for divorce between them, at the time this case began. These facts appear in the record, but not in the petition. June 20, 1899, the husband commenced this action in the nature of replevin against the defendant, his wife, for certain personal property specified in his verified petition. The property includes a lot of household articles, such as lace curtains, beds and bedding, carpets, chairs, knives, forks, and spoons, stoves, and some miscellaneous items of personalty, which need not be enumerated. Their value, as laid in the petition, was $300. Defendant is charged with wrongfully taking and detaining the property from plaintiff. The usual statutory allegations to preclude the retention of the property by defendant on a delivery bond were made under oath. An order of delivery followed, and then a bond to defendant was duly filed by plaintiff, with two sureties, approved by the sheriff. Whereupon the property was taken from defendant by that officer and delivered to the plaintiff. Defendant filed an answer admitting the value of the said property to be $300, denying the other allegations of the petition, asserting ownership and right to possession of the property described, and that defendant's damages by the taking and detention thereof were $100, for which, and for the return of the property and for costs, she prayed judgment. She then added a plea that plaintiff was her husband, and as such could not maintain this action against her. No reply appears by the abstracts before this court to have been filed. When the cause came on for trial, in 1900, the plaintiff dismissed it. The defendant orally requested the court to assess the value of the property, and to render judgment for the return thereof or the assessed value. The further proceedings at that time it will be convenient to indicate by the history thereof in the bill of exceptions: "It was admitted that plaintiff was living separate and apart from the defendant, and they had been so living separate from the 1st day of March, 1900, and that an action for divorce was then pending between them in this court, which action had been tried and taken under advisement by the court, but no decision had been rendered in it; and it was further admitted that plaintiff and defendant were husband and wife both at the institution of the suit and at the time of the trial. It was admitted that plaintiff was in possession of all the property sued for. The defendant offered in evidence plaintiff's petition and affidavit as set forth on pages 2 and 3 of this record, and also put in evidence the fact that in the previous case for divorce the plaintiff testified that the goods sued for were of the value of from four hundred to six hundred dollars. The plaintiff, to sustain the issues on his part, offered evidence as follows: The plaintiff, being duly sworn as a witness, testified as follows: `Q. Who is the owner of these goods replevied?' To which the defendant then objected for the reason that the ownership of the said goods could not be controverted by the plaintiff after he had dismissed his suit, but the court overruled the objection, and the defendant excepted, and saved his exceptions then and there, and the witness answered: `I am. The defendant does not own any of them.' `Q. What is the value of these goods?' To this question the defendant objected for the reason that plaintiff could not contradict the averment of his pleadings, but the court overruled the objection, and the defendant excepted, and saved his exceptions at the time, and the witness answered: `About $80.' There was other testimony, admitted over the objection and exceptions of the defendant, that said goods were of the value of from $80 to $100. The matter was submitted to the court, and the court declined to assess the value of the property, or order its return or the payment of its value." The judgment entered by the learned circuit court is as follows (omitting caption): "Now, on this 29th day of October, 1900, this cause in replevin coming on for hearing, the cause is, on motion of plaintiff, dismissed, and defendant's claims for return of property and assessment of damages denied, for the reason that plaintiff and defendant are husband and wife, and the court doth adjudge the costs herein against the plaintiff, and doth order execution to issue therefor." No instructions were asked or given by the court at the hearing above described. Defendant moved for a new trial in due time on grounds which will appear in the discussion of the merits of the appeal. That motion having been overruled, defendant saved her exceptions by the usual bill, and then prosecuted an appeal to this court.

1. It would be singular indeed if a plaintiff, by the preliminary process of a court of justice, could obtain possession of property, and then, by dismissing his action, acquire a right to hold the property against the defendant, whoever she might be. The question here is, can he achieve such a result simply because defendant is his wife? Plaintiff did not charge her with any such fatal disability in his petition. That fact developed later. Meanwhile, by proceeding against her as an ordinary defendant, he had gained possession of the property by steps usual in actions of this character. Now he contends (and his contention has received some sanction) that defendant cannot disturb the possession of the property which he obtained by these maneuvers, because of the tender relationship existing between her and himself. The petition of plaintiff in replevin alleges that defendant had the property in her possession. He demanded the aid of the court to transfer that possession to him. Having gained possession upon such allegations, plaintiff should not be allowed to abandon his claim of ownership, and then to assert successfully that the court is powerless to restore to defendant the possession of the property, which was invaded by the process plaintiff had secured against her. The manifest injustice of an assertion of that sort stamps it as probably spurious in law. Sound law does not often lead to such results. The statutes regulating the use of replevin ordain that, if plaintiff fails to prosecute his action with effect and have the property in his possession, and defendant by answer claims it and demands its return, there shall be an assessment of the value of the property, and damages for the taking and detention thereof, followed by a judgment against plaintiff and his sureties for the return of the property, or its assessed value, with the damages and costs. Rev. St. 1899, §§ 4473, 4474. Plaintiff's contention is that this law cannot be applicable, because defendant is his wife. We do not agree with his contention. It was held in Gentry v. Templeton (St. L.) 47 Mo. App. 55, that a married woman, as defendant, could recover the value of property taken from her by a statutory writ of replevin. In Gotcher v. Haefner, 107 Mo. 270, 17 S. W. 967, it was said that "a wife can maintain an action in her own name to recover her statutory separate property." In those cases, however, the husband was not the adverse party. It has been several times declared by the supreme court of Missouri that prior to the enactment of section 4335, Rev. St. 1899, suits in equity could be maintained between husband and wife in respect of...