Blurton v. Hansen

• Decision Date: 23 February 1909
• Citation: 135 Mo. App. 548,116 S.W. 474
• Parties: BLURTON et al. v. HANSEN et al.
• Court: Missouri Court of Appeals

116 S.W. 474

135 Mo. App. 548

BLURTON et al. v. HANSEN et al.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. REPLEVIN (§ 30)—DESCRIPTION OF PROPERTY.

A replevin affidavit described the property as 2,500 pounds of zinc and lead ore, the same being a quantity of such ore delivered to defendants on the ____ day of July, 1907, to be milled, of the value of $50, and alleged that it had been damaged by being mixed with inferior ore. Held, that the description of the property was sufficient under the rule that a petition in replevin need only describe the property with sufficient clearness as to enable the officer to identify it.

2. CONFUSION OF GOODS (§ 12)—COMMINGLED GOODS—RIGHT TO RECOVER.

The fact that defendants in replevin to recover ore had wrongfully mixed plaintiffs' ore with ore of a lower grade belonging to them, did not preclude plaintiffs' recovery of their ore, though some of defendants' might have been taken with it.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by J. Blurton and others against H. C. Hansen and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

This action was instituted before a justice of the peace by filing the following statement verified by affidavit: "Now on this day come the plaintiffs, and for cause of action against defendants state that they are lawfully entitled to the possession of 2,500 pounds of zinc and lead ore, the same being a quantity of said ore delivered to the defendants on the ____ day of July, 1907, to be milled by defendants, of the value of fifty dollars; that the same is now wrongfully detained by the defendants at the county of Newton aforesaid; that the same has not been seized under any process, execution or attachment against the property of plaintiffs; that said property has been damaged and injured by defendants, in that the same has been mixed with a quantity of other and cheaper ore; that for the taking and detention of said property and for all injuries thereto plaintiffs are damaged in the sum of $20. Plaintiffs further state that they will be in danger of losing the said property unless it be taken out of the possession of said defendants. Wherefore plaintiffs pray judgment for the recovery of said property and $20 damages for the detention thereof, and for all injuries thereto." According to the recitals in the abstract, the petition was accompanied by a replevin bond in the ordinary form with a penalty of $100. An order of delivery was issued to the constable for the property described in the statement, and the constable returned he had executed the order "by taking into my possession the within named property." Summons was issued in the ordinary form and served on defendants M. P. Welton and H. C. Hansen, who retained the ore by executing a delivery bond which recited the property had been attached by the constable under a writ of attachment. The judgment of the justice also indicates the action was treated as one of attachment and not of replevin, for his transcript recites an attachment and summons had been executed, and contained an entry of judgment in favor of plaintiffs "for $50, the amount sued for and $20 damages." Defendants appealed to the circuit court, where the case came on for trial before a jury, but defendants' counsel objected to the admission of any testimony for plaintiffs, assigning as a reason merely that the petition failed to state facts sufficient to constitute a cause of action. The objection was sustained, plaintiffs taking an exception, and thereupon the jury was discharged and judgment entered dismissing the cause. Plaintiffs appealed to this court.

Ruark & Benton, for appellants. Spencer & Spencer, for respondents.

GOODE, J. (after stating the facts as above).

The only question argued and presented for our determination is whether the description of the property in the statement was sufficient to let in evidence to establish a right of possession in plain...