Bruce v. Ulery

• Decision Date: 31 October 1883
• Citation: 79 Mo. 322
• Parties: BRUCE v. ULERY et al., Appellants.
• Court: Missouri Supreme Court

79 Mo. 322

BRUCE

v.ULERY et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

Woolridge & Daniel for appellants.

John F. Lawder for respondent

HENRY, J.

This is an action commenced in the circuit court of Cass county, in the nature of an action of trespass for forcibly entering plaintiff's dwelling house in said county, and searching the same. The petition alleged that the entry was forcible and unlawful, and that defendants unlawfully and forcibly opened divers drawers, trunks and valises belonging to plaintiff, leaving the contents in a scattered and confused condition; that defendants falsely represented that they were acting under a search-warrant issued by a justice of the peace. The answer of defendants denied that they entered said dwelling house unlawfully or forcibly, denied that they represented that they were acting under a search-warrant, and contained a general denial of the other allegations. For a further defense, it alleged that defendant Ulery and wife commenced an action before a justice of the peace to recover a certain deed of conveyance against Elizabeth Hawkins, and that a writ of replevin was duly issued by the justice, commanding defendant Davis, as constable, to take said deed, particularly described in the writ, from the possession of Elizabeth Hawkins, and deliver it to plaintiff; that in obedience thereto the said constable and defendant Ulery went to the house of said Elizabeth Hawkins and informed her and Bruce, then at her house, of his business, and that they invited defendants to enter and search for the deed, and that Bruce opened the drawers, trunks and valises and requested the defendants to make the search. The reply was a general denial. Plaintiff obtained a judgment for $50, from which this appeal is prosecuted.

Bruce testified substantially to the facts alleged in his petition, except as to the forcible entry into the house; that he owned the house but it was occupied by Mrs. Hawkins as his tenant, except some rooms which by arrangement with her he occupied; that he unlocked for defendants the drawers and took his valise from under the bed and told them to search it. Mrs. Hawkins testified that defendants came to her house, and that she invited them in; that Ulery said that they had come to see about the deed, said if witness would give it up they would not search; that she declined to give it up; he then said they would search for it, to which she replied they were welcome to do so if they had authority, and Davis then read to her the writ issued by the justice. Bruce also testified that he was damaged $15 or $20. He was then asked by his attorney how much he was damaged in his feelings, to which defendants objected; but the objection was overruled, and he stated that he was damaged in his feelings $500.

The defendants introduced as evidence the justice's transcript in the case of Ulery and wife against Mrs. Hawkins, and the writ of replevin and the return thereon, and Davis testified that he took Ulery with him to identify the deed, if found. His testimony was not materially different from that of Mrs. Hawkins; testified that he was not aware that he was searching plaintiff's property until the search was about completed, when plaintiff took his valise from under the bed, opened it and requested defendants to search it; that he was not aware that plaintiff lived in the house. Ulery's testimony was substantially the same. This was all the evidence.

The cause was tried without the intervention of a jury, and at plaintiff's instance the court declared the law as follows:

If the court, sitting as a jury, shall believe from the evidence that defendants unlawfully and intentionally entered plaintiff's dwelling house, or having entered plaintiff's dwelling house did unlawfully and intentionally search the same, then the court should give judgment for the actual damages sustained by plaintiff by reason of said search, and the court shall also find such further sum as may to the court seem proper and right in the way of exemplary damages, in all not exceeding the amount prayed for in plaintiff's petition.

The following asked by defendants were refused:

1. If the court, sitting as a jury, believes from the evidence that on the 25th day of June, 1879, defendant Elias Ulery and his wife commenced an action of replevin before James A. Burney, a justice of the peace, to recover possession of a deed of conveyance to said wife, and that a writ of replevin was issued by said justice, directing defendant Davis, constable, to take said deed from said Elizabeth Hawkins, and deliver the same to Elias Ulery and Elizabeth Ulery; and that in obedience to said writ defendant Davis, as such constable, and the said Elias Ulery, went to the house of said Elizabeth Hawkins to execute said writ, and informed her and plaintiff Bruce of the nature of their errand and the object of their visit, and said Elizabeth Hawkins and said Bruce invited them to enter said house and make search for said deed, and that when so invited they did enter the said house, and that plaintiff Bruce unlocked and opened the trunks, valise and drawers of plaintiff searched by defendants, and that defendants, in making such search, did no unnecessary damage to the property searched,...