Criley v. Vasel

• Decision Date: 31 March 1873
• Citation: 52 Mo. 445
• Parties: HENRY C. CRILEY, et al., Respondant, v. CHARLES VASEL, Appellant.
• Court: Missouri Supreme Court

52 Mo. 445

HENRY C. CRILEY, et al., Respondant,

v.CHARLES VASEL, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

S. S. Merrill, for Appellant.

I. There was no sufficient change of possession of the property. (Claflin vs. Rosenberg, 43 Mo., 593; Gillham vs. Kerone, 45 Mo., 487.)

II. An action for the claim and delivery of personal property seized on execution, must be brought against the officer, who in the view of the law has the possession, though the seizure was made by his deputy. (Richardson vs. Reed, and Skilton vs. Winslow, 4 Gray, 441.)

Frank J. Bowman, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought under our Statute in reference to the claim and delivery of personal property.

The action was brought before a Justice of the Peace, and was for the recovery of the possession of one unfinished wagon, one old wagon, one anvil, and a few bars of iron, of the aggregate alleged value of one hundred and fifty dollars, and also for the recovery of fifty dollars damage for the unlawful taking and detention thereof.

A trial was had before the Justice, where the plaintiff recovered a judgment, from which the defendant appealed to the St. Louis Circuit Court, where the plaintiff again recovered a judgment. The facts as they appear in the record are, that on or before the 18th day of February, 1870, plaintiffs and their father Conrad Criley had been partners, working at the blacksmithing business in St. Louis County; that on said Eighteenth day of February, 1870, said partnership was dissolved, and that there was but little property on hand belonging to the firm. That the partnership up to the dissolution was carried on in the name of Criley & Sons; after the dissolution in the name of Criley & Brothers. That the business at the dissolution was settled up, and Conrad's interest, which was upon a settlement only about forty dollars, was paid to him, and the business turned over to plaintiffs' and carried on by them at the same place as it had been carried on before, and in the same name, except that the plaintiffs' hired their father at wages of three dollars per day, and did their business in the name of Criley & Brothers in place of Criley & Sons, and it further appeared that defendants had told some of their friends and customers of the change in the firm. The plaintiffs' were in possession before they purchased out the interest of their father, and continued in possession after the purchase. They had no sign over their door either before or after the dissolution of the first partnership. The evidence also tended to show that a part of the property sued for, was purchased by the plaintiffs' after the formation of the new partnership and that Conrad Criley never had any interest in it. The defendant claims that he is a deputy Constable in St. Louis County, and that an execution was placed in his hands as such, issued on a judgment rendered against Conrad Criley on the 17th day of February, 1870. That by virtue of said execution he levied on the property sued for, and that said property was subject to said execution, and that he was therefore justified in seizing and taking the same. The judgment and execution were offered in evidence, as well as the return on the execution.

At the close of the evidence the Court instructed the Jury as follows:

5th. “If the Jury believe that any articles of the property in dispute belonged to the plaintiffs, and not to said firm o Criley and Sons at any time, and that neither said Conrad nor said firm had at any time an interest therein, then as to such articles the Jury will find for the plaintiffs.”

6th. “If the Jury find for the defendant, they will find what articles, if any, belonged to the plaintiffs, as contemplated by instruction numbered 5. They will then find the value of the property in dispute which they may find belonged to the firm of Criley & Sons, and then find the value of Conrad Criley's interest in such firm property, and lastly the interest of said Conrad in all the property of the firm.”

7th. “If the Jury believe from the evidence, that...