Davis v. Randolph

• Decision Date: 27 March 1877
• Parties: JAMES DAVIS, Respondent, v. F. W. RANDOLPH et al., Appellants.
• Court: Missouri Court of Appeals

3 Mo.App. 454

JAMES DAVIS, Respondent,

v.F. W. RANDOLPH et al., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 27, 1877.

1. To enable plaintiff to maintain an action for the recovery of specific personal property, the defendant must be in possession thereof at the commencement of the action.

2. Where the petition alleges that the defendant is in possession, and the proof shows the contrary, there is such a variance between the allegations and the proof as disables plaintiff from recovering.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

Amos M. Thayer, for appellants, cited: Johnson v. Garlick, 25 Wis. 705; Mitchell v. Roberts, 27 N. H. 486; Brockway v. Burnap, 12 Barb. 347; Richardson v. Reed et al., 4 Gray, 441; Coffin v. Gephart, 18 Iowa, 257; Wag. Stat. 1026, secs. 11-14.

Levi Davis, for respondent, cited: Wag. Stat. 1023, sec. 1; Barksdale v. Appleberry, 23 Mo. 389; Nichols v. Michaels, 23 N. Y. 264; Knapp v. Smith, 27 N. Y. 277; Ellis v. Lersner, 48 Barb. 539.

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

This is an action in the nature of an action of replevin or detinue, brought under the provisions of the Code for the claim and delivery of personal property.

The property claimed in the petition of plaintiff is one portable steam-engine and one steam-thresher and separator, alleged to have been wrongfully detained by defendants. The property is alleged to be worth $1,000, and $200 are asked for damages for its detention. An order of delivery was issued, to which the sheriff made return that he had taken the separator and thresher from defendants, and delivered them to plaintiff; and that the engine could not be found in his county.

The answer of defendants denies all material allegations of the petition.

The cause was tried by the court, a jury being waived. All issues were found for plaintiff; and the value of the property not found by the sheriff was assessed at $800, and plaintiff's damages for detention at $100. And, thereupon, judgment was entered that plaintiff retain possession of the property already delivered to him by the sheriff; and that he recover of defendants the assessed value of the property returned as not found, together with the damages, making in all $900. Defendants bring the cause here by appeal.

The evidence tended to show that the steam-engine as well as the separator and thresher were placed with defendants, on storage, in January, 1875. In June, 1875, plaintiff demanded possession, which was refused. Before demand and refusal, defendants had parted with possession of the steam-engine, and did not have possession or control of the same, or know where it was, when the suit was instituted.

It is claimed by appellant that the action of replevin can be maintained, under our statute, only against one who has actual possession of the property claimed, and that, so far as the portable engine is concerned, therefore, there cannot be judgment for its value in this form of action. This point was preserved by an instruction to that effect, refused by the court below.

The statutory proceeding for the claim and delivery of personal property in this State resembles the old common-law actions of detinue and replevin in this: that they were the only proceedings known to the law for the specific recovery of a chattel, and that this is a legal proceeding for the recovery of a specific chattel. Nevertheless, it is not replevin and it is not detinue. In replevin the taking must have been wrongful, but it does not follow that one cannot follow his remedy under our statute where the defendant lawfully acquired possession of the goods; a bailee who wrongfully delivered the goods to another would have still been liable in detinue (Chit. 138), but it by no means follows that a proceeding under our statute can be maintained which has been commenced after the defendant has parted with, and lost all control over, the goods claimed.

It is alleged in the petition in this suit (and it is a necessary allegation) that the defendant was in possession of the goods specifically claimed at the commencement of the action; and judgment is demanded for the recovery of the possession of the goods, and damages for their detention. On trial it turned out to be that defendant was not in possession of the goods at the commencement of the action. There is, then, a fatal variance between the allegations and the proof. The plaintiff is not to make any allegations he pleases, and recover on his proof. In the nature of things there must be a distinction between the remedies applicable to differing cases, and an examination of the statute upon which this...