Dollman v. Munson
| Decision Date | 06 December 1886 |
| Citation | 2 S.W. 134,90 Mo. 85 |
| Parties | Dollman v. Munson, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court. -- Hon. John L. Thomas, Judge.
Affirmed.
Williams & Green for appellant.
(1) The motion for new trial should have been sustained. (2) An improper finding was occasioned by plaintiff's testimony. (3) Defendant had a just defence. His testimony and that of Malone, Delf, Moore and Pulse shows the hog to have been his property. R. S., sec. 3704. (4) The motion in arrest of judgment should have been sustained. On account of the defect in the statement the justice acquired no jurisdiction of the subject matter of the action. R. S., secs. 2882-3; Gist v. Loring, 60 Mo. 487; Madkins v. Trice, 65 Mo 656. It is immaterial that defendant made no objection to the defect in the statement till he moved in arrest. Jurisdiction of the subject matter cannot be conferred otherwise than by law. Stone v. Corbitt, 20 Mo. 350.
Wislizenus & Kleinschmidt for respondent.
(1) This court will not reverse the action of the court below in refusing to grant a new trial, save when the discretion is grossly abused. Eidemiller v. Kump, 61 Mo. 340; Goffin v. Veil, 56 Mo. 310. (2) The point to which this evidence was directed, if not wholly immaterial, was certainly directed to a mere side issue, and was merely cumulative of evidence produced on trial that plaintiff owned no blooded stock, and the discovery of cumulative evidence is no ground for setting aside a verdict and granting a new trial. State v. Sayers, 58 Mo. 585; Whalen v Railroad, 60 Mo. 323; State v. Redemeyer, 71 Mo. 173. (3) It was owing to appellant's objection solely, that the evidence, which he seeks to cover with his affidavits, was not brought out at the trial. He is in no position to complain. State v. Ray, 53 Mo. 345. (4) The affidavits, at best, tended to contradict (or, perhaps, impeach) plaintiff, and would not warrant a new trial. State v. Ray, 53 Mo. 345; State v. Willoughby, 76 Mo. 215. (5) It is sufficient answer to the objection to the complaint to refer to its language, by which it is charged that the property "is wrongfully detained by defendant at the county of Jefferson aforesaid," and that Jefferson county -- as far as this case is concerned -- is in the state of Missouri, this court will take cognizance of. Woods ex rel. v. Henry, 55 Mo. 510; State v. Daniels, 66 Mo. 192; 1 Greenleaf on Evid. [4 Ed.] par. 6, p. 8. (6) If there be any defect, the statute of jeofails cures it. R. S., 1879, sec. 3582: "Ninth, for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict; twelfth, for the want of any venue, if the cause was tried in the proper county."
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 twenty-five dollars.
The statement filed by the plaintiff before the justice contained the averments required by Revised Statutes, section 2882, and was also in the form given by section 2883, except that the words:
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 Diense. 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 Diense brought and examined, before he decided the case. To this proposition, the plaintiff's counsel assented, but the defendant's objected to sending for any more witnesses; whereupon the court found for the plaintiff in the sum of twenty dollars, 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 Diense, 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 Diense, and others, tending to show that the mother of the barrow, in question, sold by Diense 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 except...
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