Brooks v. Barth

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1098,98 Mo. App. 89
• Parties: BROOKS v. BARTH.
• Court: Missouri Court of Appeals

71 S.W. 1098

98 Mo. App. 89

BROOKS v. BARTH.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

APPEAL—RECORD—AFFIDAVIT FOR APPEAL— REMARKS OF JUDGE.

1. The case appearing on a full transcript showing that an affidavit for appeal was filed, the appeal will not fall, because of failure of the clerk to incorporate the affidavit in the record.

2. The jury, after being out more than a day, came in without agreeing on a verdict, and the court, after admonishing them that he did not want any of them to violate his conscience in agreeing on a verdict, stated that they had failed to agree on a verdict in another case, that he had no use for juries that did not agree, and that at times men mistake stubbornness for firmness. They retired, and returned a verdict in 10 minutes. Held, that the remarks were prejudicial.

Appeal from circuit court, Clark county; E. R. McKee, Judge.

Action by William Brooks against Peter Barth. Judgment for defendant. Plaintiff appeals. Reversed.

O. S. Callihan, for appellant. Chas. Lewellyn, for respondent.

BLAND, P. J.

The action is in replevin for the recovery of four brood sows. The judgment was for defendant. After a timely, but ineffectual, motion for new trial, plaintiff appealed.

The case is here on a full transcript, showing that an affidavit for appeal was filed, but the affidavit itself is not in the record. For this omission respondent contends that the cause is not here by appeal. The failure of the clerk to incorporate the affidavit was an omission that might have been supplied if a timely suggestion had been made. If the affidavit was insufficient to confer jurisdiction upon this court to hear the appeal, we presume the respondent would have made the suggestion. As he did not, we will assume that the affidavit was in the usual statutory form and was sufficient.

It appears that the stock law is in force in Clark county, from which the appeal comes. The evidence tends to prove that the appellant was the lessee of respondent's grantor of a farm in said county; that his term had expired, and that respondent insisted on his surrendering the premises. Appellant had three cows, some horses, and the sows in controversy on the premises. Respondent went on the premises, and testified that he found the horses and cows in a field, tramping up the ground, and drove them into a fenced lot; that the gates to this lot were all open. The four sows in controversy were in this lot, and during the day escaped therefrom, and strayed upon the premises of the respondent, and were by him impounded under the stock law. For appellant the evidence tends to prove that when respondent came upon the premises some words passed between them, and that he (appellant) got on a horse, and rode away to see a lawyer; that the respondent opened and left open a gate leading from the lot into a lane; that the sows passed through this gate, and strayed upon respondent's premises. Respondent's evidence is that the gates of the lot were all open when he went upon the premises, and that he closed them, after driving the cows and the horses into the lot from the field, and left them closed. The case was given to the jury on the afternoon of October 17th. Not having arrived at a verdict on the morning of the 19th, the court had the jury brought into open court by the sheriff, and the following occurred: "The Court: Gentlemen, have you agreed upon a verdict? to which the foreman answered, `No, sir.' The Court: Gentlemen, can the court assist you in any way in arriving at a verdict? Do you differ in opinion as to what any witness swore to? The Foreman: No, sir. The Court: Do you all understand the instructions of the court alike? The Foreman: Yes, sir. The Court: Then, gentlemen, it is simply a disagreement as to the weight to be given the evidence,— what the evidence establishes and proves? The Foreman: Yes, sir." The court then said: "I want you to distinctly understand, gentlemen, that I...