Collins v. Hough

• Decision Date: 31 January 1858
• Citation: 26 Mo. 149
• Parties: COLLINS et al., Plaintiffs in Error, v. HOUGH, Defendant in Error.^a1
• Court: Missouri Supreme Court

26 Mo. 149

COLLINS et al., Plaintiffs in Error,

v.HOUGH, Defendant in Error.^a1

Supreme Court of Missouri.

January Term, 1858.

1. In suits for the possession of personal property, under article 8 of the practice act of 1849 (Sess. Acts, 1849, p. 82), the provisions of the replevin act of 1845 (R. C. 1845, p. 922) are applicable so far as it may be necessary to resort to them to prevent a failure of justice; the provisions of said article govern as far as they are applicable.

2. Where, in an action under the 8th article of the practice act of 1849, the plaintiff gives a return bond and receives the property sued for, and fails to prosecute the action, an assessment of the value of the property and damages for its detention may be made, and judgment against the plaintiff rendered, as directed in sections 8 and 9 of the replevin act of 1845.

3. Summary statutory proceedings against the securities in the return bond must be had under section 9 of the 8th article of the practice act of 1849.

4. Double damages for the detention of the property by the plaintiff can not be given against his sureties.

Error to Henry Circuit Court.

The facts are sufficiently set forth in the opinion of the court.

Troxell, for plaintiffs in error.

I. The bond on which the motion and judgment complained of were founded was given under and in pursuance of the practice act of 1849; and upon the failure of Collins to prosecute his said original suit for the recovery of said slave with effect, and to return said slave, and pay the damages occasioned by the taking and detaining thereof, defendant might perhaps have brought a suit upon the bond against the principal and securities in that bond; but the defendant having elected to proceed by motion under the statute, he was bound to give notice to the obligors in the bond.

II. There was no authority for doubling the damages assessed by the jury.

III. It was error in the court below to proceed as it did without notice, and no motion by the obligors in the bond to set aside such proceedings need have been made.

IV. The act of 1845 entitled “An act regulating the action of replevin,” was, as is supposed, repealed by the practice act of 1849; but, however that may be, the judgment of the court below was nevertheless erroneous; because, conceding that the above act of 1845 was not repealed, then the remedy given by the practice act of 1849 is a cumulative one, and the suit in which the bond in question originated was properly brought under the act of 1849. It is therefore immaterial whether the act of 1845 was or was not in force at the time of the rendition of the judgment of the court below. The proceedings of Collins for the specific recovery of the slave Paulina were prosecuted under the act of 1849. The bond in question was executed under that act, and the defendant was bound either to bring suit upon that bond or to proceed by notice and motion thereon under the act of 1849. The defendant can not now invoke the aid of the act of 1845.

Wright and Ryland, for defendant in error.

I. No notice to the securities was required, and judgment for double damages was rightly rendered. Judgment was not rendered on the bond, and the statute only required notice to the defendant when this was done.

II. The provisions of the statute of 1848 on replevin, which related to the rights of defendants when plaintiff failed to prosecute his suit with effect, were not repealed by the act of 1849. They have been incorporated into the revision of 1855, except as to double damages. Judgment might still be taken either for the possession of the property or for the value, and in either case for damages. (1 Whitaker's Prac. 238; 3 Sandf. 614.) Those sections of the statute of 1848, under which this judgment was rendered, were consistent with the code of 1849, and consequently continued in force.

If this court should hold that the court erred in rendering judgment for double damages, we remit the double damages, and ask this court to render judgment for single damages.

RICHARDSON, Judge, delivered the opinion of the court.

Collins commenced an action in 1852 against Hough under the 8th article (claim and delivery of personal property) of the practice act of 1849, to recover the possession of a negro woman. Upon filing the necessary affidavit an order was made on...