Beagles v. Beagles

• Decision Date: 27 May 1902
• Citation: 68 S.W. 758,95 Mo.App. 338
• Parties: JAMES M. BEAGLES, Respondent, v. MARY B. BEAGLES, Appellant
• Court: Missouri Court of Appeals

68 S.W. 758

95 Mo.App. 338

JAMES M. BEAGLES, Respondent, v. MARY B. BEAGLES, Appellant

Court of Appeals of Missouri, St. Louis

May 27, 1902

Appeal from Audrain Circuit Court.--Hon. Elliott M. Hughes, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

P. H Cullen for appellant.

(1) When plaintiff in replevin, having obtained possession of the property, dismisses his suit, the defendant is entitled to a judgment for the return of the property or the payment of its value. The command of the statute is imperative. R. S. 1899 sec. 4474; Callius v. Hough, 26 Mo. 149; Rhoades v. McNultz, 52 Mo.App. 301; Rosentretter v Brady, 63 Mo.App. 398. (2) The code of procedure having abolished the distinction between law and equity, it is immaterial whether the form of action between husband and wife be at law or in equity. The answer in this case states facts sufficient to warrant relief in equity, and in order that injustice might be avoided it was the duty of the court to afford relief without regard to the name given to the action. Wright v. Wright, 54 N.Y. 437; Munday v. Collier, 52 Ark. 126; Gillespie v. Gillespie, 67 N.W. 206; Whitney v. Whitney, 49 Barb. (N. Y.) 319; Le Blanc v. Dubroca, 6 La. Ann. 360; Kelly v. Hurt, 74 Mo. 562; Bank v. Woeston, 68 Mo.App. 140; McFarland v. Railroad, 125 Mo. 275; Martin v. Turnbough, 153 Mo. 184.

Fry & Clay for respondent.

(1) This proceeding on the bond to assess the value of the property and damages was a new suit, a new action by the defendant (wife) against the plaintiff (husband), to recover the specific property or the value thereof and damages. The wife became the plaintiff and must prove her case against the husband; the judgment would be a money judgment against the husband; it is therefore an action at law by the wife against the husband, which can not be maintained. Ilgenfritz v. Ilgenfritz, 49 Mo.App. 127; Goldsmith v. Taussig, 60 Mo.App. 460; Woodward v. Id., 148 Mo. 241. (2) But if it was her separate property, and plaintiff has deprived her of the exclusive possession of the same, she has an ample remedy in equity which is her sole forum. Ilgenfritz v. Id., 49 Mo.App. 127; Sackman v. Id., 143 Mo. 576; Woodward v. Id., 148 Mo. 241; McBreen v. Id., 154 Mo. 328.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

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 prays 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 first 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, 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 replevined? 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 twenty-ninth 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 can not 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 statute regulating the use of replevin ordains 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 (R. S. 1899, secs. 4473, 4474). Plaintiff's contention is that this law can not be applicable, because defendant is his wife. We do not agree with his contention.

2. It was held in Gentry v. Templeton, 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 (R. S. 1899) suits in equity could be maintained between husband and wife in respect of their individual property. Darrier v. Darrier, 58 Mo. 222; Reed v. Painter, ...