Burns v. Lidwell

• Decision Date: 06 November 1878
• Citation: 6 Mo.App. 192
• Parties: PATRICK BURNS, Defendant in Error, v. THOMAS C. LIDWELL, Plaintiff in Error.
• Court: Missouri Court of Appeals

6 Mo.App. 192

PATRICK BURNS, Defendant in Error,

v.THOMAS C. LIDWELL, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Nov. 6, 1878.

1. The record in an action before a justice of the peace in St. Louis, to establish a stable-keeper's lien, must show the jurisdictional fact that the action was brought before a justice of the ward in which the claimant resides.

2. Where, in an action under the Claim and Delivery Act, the property has been taken from the owner, it is no defence for the captor to show that, at the time of the taking, a third person claimed a lien upon the property, the having such a lien being merely an abstract right, amounting to nothing unless in some way enforced.

ERROR to St. Louis Circuit Court.

Affirmed.

H. D. LAUGHLIN and GEORGE A. CASTLEMAN, for plaintiff in error, cited: Gray v. Parker, 38 Mo. 165; Ruggles v. Washington, 3 Mo. 496; Bosse v. Thomas, 3 Mo. App. 472; Wilson v. Gray, 8 Watts, 35.

DAVID MURPHY, for defendant in error, cited: Bast v. Ketchum, 5 Mo. App. 433; The State, etc., v. Saline, 51 Mo. 395; Wilson v. Renter, 29 Iowa, 176; Dillon v. Railroad Co., 58 Mo. 69.

BAKEWELL, J., delivered the opinion of the court.

It appears from the record in this case that on July 16, 1876, one Watkins was keeping a landaulet and the two horses that drew it, at the stable of one Joyaile, to whom he owed at that date $270, for several months' keep of the horses and carriage, at the rate of $5 a mouth for the landaulet and $35 for the pair of horses. On the same day, Watkins took away the horses and carriage, and sold the carriage to plaintiff for $1,000. The carriage was sold at a carriage-shop, and purchased by plaintiff in good faith, without knowledge of Joyaile's claim. On July 27th, Joyaile filed a statement before Young, a justice of the peace of St. Louis Township, claiming a lien upon the horses, carriage, and harness, for the board-bill, and such proceedings were had thereupon that next day judgment was entered for $277.50, and the same was declared a lien “on the animals named in plaintiff's account, viz., carriage, horses, and harness,” and the constable was directed to sell “said animals.” On this judgment execution was issued, commanding defendant in the present action, a constable, to sell “the carriage-horses and harness” described in the complaint. Defendant, by virtue of this writ, seized the landaulet in plaintiff's possession on August 4th.

The present action was commenced by plaintiff under the Claim and Delivery Act, to obtain possession of the property from the constable. The cause was tried before the court; there was a finding and judgment for plaintiff, and defendant appeals.

No declarations of law were given, and there are no exceptions to evidence. It is contended by appellant that, on this state of facts, judgment should have been for defendant.

Whether the act of March 27, 1875 (Acts 1875, p. 88), amending the second article of the General Statutes, in regard to liens (Wag. Stats. 906, sect. 2), warrants a justice, in a case of this kind, in directing a carriage to be sold, is a question discussed in the argument of this cause, but which it is not necessary to determine for the purposes of this case. The order seems to have been to sell the “carriage-horses,” not the carriage, and the execution follows the order. Even that is not material, inasmuch as there is nothing in the...