Dollman v. Munson
| Citation | 90 Mo. 85 |
| Parties | DOLLMAN v. MUNSON. |
| Decision Date | 06 December 1886 |
| Court | Missouri Supreme Court |
Appeal from circuit court, Jefferson county.
Replevin. Judgment for plaintiff. Defendant appeals.
Williams & Williams, for appellant, Munson.
This is an action of replevin, brought before a justice of the peace in Jefferson county, Missouri, for two hogs (a sow and a barrow) alleged to be worth $25. The statement filed by the plaintiff before the justice contained the averments required by section 2882, Revision 1879, and was also in the form given by section 2883, except that the words, “State of Missouri, County of -----, ss.,” at the head of the form, and preceding the statement itself, were omitted. All the blanks appearing in the form were properly filled, the third blank being filled with the word “Jefferson,” which is the name of the county in which the suit is brought.
The plaintiff gave no replevin bond, and the property remained with the defendant. The trial before the justice resulted in a verdict and judgment that plaintiff recover the sow, and that defendant retain the barrow. The plaintiff got the sow from the defendant, who asserted no claim to her, and, as to the barrow, took an appeal to the circuit court, where, upon a trial anew, as shown by the record, the question turned upon the identity and ownership of the barrow in question, and upon this point there was, as is usual in such cases, a marked and decided conflict in the testimony; the plaintiff and his witnesses identifying the barrow as the property of the plaintiff, while the defendant and his witnesses with equal confidence identified it as the property of the defendant. It also appears that plaintiff, while testifying in his own behalf, said, among other things, that the hog was of the Poland China stock, from a Poland China sow he had purchased from one Louis Dieuse. The witness Meyers, for plaintiff, said it was Poland China and Berkshire mixed; the defendant and two of his witnesses said it was Poland and Berkshire mixed; while one of defendant's witnesses thought it was pure Berkshire.
After the evidence was closed, the judge before whom the case was tried said he would like to have Louis Dieuse brought and examined before he decided the case. To this proposition the plaintiff's counsel assented; but the defendant objected to sending for any more witnesses; whereupon the court found for the plaintiff in the sum of $20, and rendered judgment accordingly.
In due time, defendant filed his motion for a new trial (1) because the decision was against the evidence; and (2) because the testimony of plaintiff as to his having purchased a Poland China sow from Louis Dieuse was not true, and that the knowledge of the fact that it was untrue had come to him since the trial and decision of the case. In support of this motion, defendant filed the affidavit of Louis Dieuse and others, tending to show that the mother of the barrow in question sold by Dieuse to plaintiff was not of Poland China or Berkshire stock, but a common scrub. On the other hand, the plaintiff filed affidavits in opposition to those of defendant, tending to support his testimony in that behalf at the trial. Whereupon the court, after examining and considering said motion and affidavits, overruled the same; to which the defendant excepted.
The defendant also filed his motion in arrest of judgment, on the following grounds: (1) That the justice of the peace before whom the action was brought had no jurisdiction of the...
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