Beatty v. Clarkson

• Decision Date: 28 November 1904
• Citation: 83 S.W. 1033,110 Mo.App. 1
• Parties: JAMES T. BEATTY, Respondent, v. A. P. CLARKSON, Appellant
• Court: Kansas Court of Appeals

83 S.W. 1033

110 Mo.App. 1

JAMES T. BEATTY, Respondent, v. A. P. CLARKSON, Appellant

Court of Appeals of Missouri, Kansas City

November 28, 1904

110 Mo.App. 1 at 6.

Original Opinion of November 28, 1904, Reported at: 110 Mo.App. 1.

Motion overruled.

OPINION

OPINION ON MOTION FOR REHEARING.

BROADDUS, J.

The appellant insists that as the plaintiff only recovered for a part of the articles of property sued for, there should have been a judgment in defendant's favor against plaintiff and his sureties on the bond for the remaining articles replevied. The defendant was entitled to such judgment. [Updyke v. Wheeler, 37 Mo.App. 680; Ingals v. Ferguson, 138 Mo. 358, 39 S.W. 801; Hecht v. Heimann, 81 Mo.App. 370.]

But defendant is in no position to raise the question on his appeal. He failed to call attention to the matter in either his motion for a new trial or in arrest of judgment. No doubt the trial court would have properly instructed the jury, if so requested, and would have entered the proper judgment if it had been asked to do so.

The question was raised for the first time in this court. It is too late as we have no power to afford the redress asked by the defendant.

Motion overruled.