Canifax v. Chapman
| Decision Date | 30 September 1841 |
| Citation | 7 Mo. 175 |
| Parties | CANIFAX v. CHAPMAN & WILLS. |
| Court | Missouri Supreme Court |
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY.
PHELPS, for Appellant. The court erred in giving the instruction, 1st. Because the plaintiff had proved himself the owner of the property; that Wills took, and by the command of Chapman, sold it, Chapman commanded the trespass to be done, and therefore is liable, whether he bought the property or not. 1 Chitty's Pl. 181. 2nd. The trial of the right of property the two last times was illegal. A verdict between the parties is conclusive as to that matter. Phil. Ev. 123; ibid 236; Felter v. Millmer, 2 Johns. R. 181. In the case cited from Johnston, there was a verdict for defendant, but no judgment. In another suit between the same parties for the same cause of action, this verdict was held to be a bar. 3rd. Admitting the last trial to have been proper, still it was no justification to the defendant, Chapman. The trial of the right of property by a constable, is a creature of the statute, the verdict can justify the officer only, and not the plaintiff in the execution. Little v. Sevmour, 6 Mo. R. 166.
WINSTON, for Appellees. 1st. Whether Chapman's leaving the property mortgaged in the hands of the mortgagor, did not render the mortgage fraudulent and void against creditors? 2nd. Could there be two trials of the right of property between the same parties? 3rd. Did the court err in giving the instruction?
Canifax sued Chapman and Wills in trespass for taking and converting his goods; plea not guilty, and verdict and judgment for the defendants. Wills was constable and had an execution against one Smith, in favor of Chapman, who directed him to levy on the goods in the declaration mentioned. Upon a claim being interposed by Canifax to the goods, the constable summoned a jury to try the right of property to the goods between Smith and Canifax, and the jury found the goods to be the property of Canifax. The right of property to the goods was again tried and a like verdict was rendered; there was a third trial and the jury found the right of property, to the goods in Smith. On the trial the court instructed the jury that unless they believed the defendant, Chapman, purchased the property sold by the defendant, Wills, or some part of it, they must find for the defendants. This instruction was excepted to, and the giving it is the error assigned. After the constable had once obtained a verdict in a trial of the right of...
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