Berghoff v. Heckwolf

• Decision Date: 31 March 1858
• Parties: BERGHOFF, Plaintiff in Error, v. HECKWOLF et al., Defendants in Error.
• Court: Missouri Supreme Court

26 Mo. 511

BERGHOFF, Plaintiff in Error,

v.HECKWOLF et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1858.

1. In an action for the possession of personal property under article 8 of the practice act of 1849 (Sess. Acts, 1849, p. 82), the plaintiff can not, by taking a nonsuit, prevent a judgment being rendered against him for a return of the property, or for damages.

2. If the plaintiff should dismiss his suit, and the defendant should omit to have the damages assessed or judgment rendered for the return of the property, the defendant would have a complete remedy by action on the bond given by plaintiff under section 3 of article 8 of the practice act of 1849.

3. The condition in such a bond to prosecute the action is a condition to prosecute it with effect, that is, with success; if the plaintiff voluntarily takes a nonsuit, this will amount to a breach of such condition, and the obligee may in an action on the bond recover full damages, within the limit of the penalty, without first obtaining a judgment for the return of the property or for damages.

4. In actions in the St. Louis law commissioner's court for the possession of personal property, under article 8 of the practice act of 1849, although the court could not entertain jurisdiction where the value of the property claimed exceed $150, yet, if the plaintiff failed to prosecute his action, the law commissioner's court might have rendered judgment against the plaintiff for an amount exceeding $150 and within the penalty of the bond given by himself.

Error to St. Louis Court of Common Pleas.

This was an action on a bond executed by defendants in a suit, under article 8 of the practice act of 1849, for the possession of a horse. Heckwolf and Kuhn, two of the defendants in the present suit, sued Berghoff for the possession of said bond. They gave the customary bond required by section 3 of said article 8, and the horse was given into their possession. When the cause came on for trial said plaintiffs voluntarily took a nonsuit. No judgment for the return of the property appears to have been rendered, and no damages for the detention of the horse, &c., awarded to defendant Berghoff. The breach assigned in the present action is that said Heckwolf and Kuhn did not prosecute said action. That portion of the petition, in which the plaintiff set forth the extent and nature of the damage received by him, was stricken out on motion of defendants. The plaintiff thereupon took a nonsuit, with leave, &c.

H. N. Hart, for plaintiff in error.

S. A. Holmes, Romyn, and Krum & Harding, for defendants in error.

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiff in a replevin suit can not, by a discontinuance of the action, or by suffering a nonsuit, prevent a judgment being rendered against him for damages or for the return of the property. (3 Black. Com. 149; Smith v. Winston, 10 Mo. 299; Collins v. Hough, 26 Mo. 149.) And it was decided in the case last cited that the 8th and 9th sections of the replevin act of 1845, as against the plaintiff, remained in force as a part of the machinery necessary for perfecting proceedings commenced under the act of 1849.

If, however, the plaintiff dismisses his suit and the defendant omits to have the damages assessed or judgment given for the return of the property, the defendant ought not on that account to be denied a full right of action and a complete remedy on the bond.

The conditions of the bond to be executed by the plaintiff in actions of replevin, by the third section of the eighth article of the act of 1849, are “for the prosecution of the action, for the return of the property if return thereof be adjudged, and for the payment to him of such sum as may for any cause growing out of the order in the cause be recovered against the plaintiff.” If return of the property is adjudged, or damages are recovered, and the plaintiff fails to satisfy the judgment, in declaring on the bond breaches of course would be assigned on one or both of the two last conditions. But if the defendant prevails by the nonsuit of the plaintiff, and no judgment is given for damages, or for the return of the property, as the two last...