Edmonston v. Jones
| Decision Date | 04 August 1902 |
| Citation | 96 Mo. App. 83,69 S.W. 741 |
| Parties | EDMONSTON v. JONES. |
| Court | Missouri Court of Appeals |
1. In an action for the alleged conversion of some hogs, it appeared that defendant claimed title to them under a chattel mortgage by plaintiff, which, upon default, permitted the mortgagee to take possession of all the property, "or any part thereof." The court excluded the record of a prior suit by this defendant against plaintiff, which showed that the animals had been claimed therein, but that the statement in replevin had been amended afterwards, so as to omit them, and a judgment followed for this defendant for other property mentioned in the chattel mortgage. Held, that said ruling was correct, and that the record did not show any splitting of defendant's claim for the property in the prior suit.
2. With consent of the adverse party, the splitting of a cause of action is immaterial.
3. Where plaintiff has no knowledge of facts which make a suit brought by him a splitting of his demand or cause of action against defendant, he is not chargeable with the penalty affixed by the doctrine of splitting a cause of action.
4. It is often the duty of one exercising a power of sale under a mortgage to sell in parcels, and not in bulk.
5. After condition broken, the mortgagee in a chattel mortgage is entitled to the possession of the property thereby conveyed.
6. Where evidence is excluded at the trial on a ground then assigned, no other ground for its admission is available on appeal; but if the ruling of the trial court is correct on any ground, it will be sustained upon appeal, whether that ground was assigned at the trial or not.
7. How far a judgment may be used to estop one not a party thereto is left undecided, but it is held that by securing a result which splits a cause of action, one may preclude his bringing another suit for items omitted, but which properly formed part of the original demand.
8. A judgment of a justice of the peace for possession of chattels is a conclusive adjudication of the right to possession as found by the judgment.
9. Conflicting instructions are erroneous, but an appellant cannot successfully complain of such a conflict when it is unduly favorable to him.
10. When an error is demonstrated to be harmless as against the party appealing, it will be disregarded, and should not form the basis for a reversal.
(Syllabus by the Judge.)
Appeal from circuit court, Audrain county; Elliott M. Hughes, Judge.
Action by W. A. Edmonston against E. E. Jones. From a judgment for defendant, plaintiff appeals. Affirmed.
J. D. Hostetter and D. A. Murphy, for appellant. O. J. Hitt and R. D. Rodgers, for respondent.
This is a suit for damages for trespass. The amended petition of the plaintiff presents two counts. Their substance is as follows: First count. Plaintiff charges that he was owner of 39 hogs, of the value of $300, May 25, 1899, and that defendant, on said date, willfully and maliciously entered plaintiff's inclosure where the hogs were, drove them away, and converted them to his own use, for which acts plaintiff asks judgment for the value of the animals, and exemplary damages in the sum of $200, charging that the acts were wantonly and maliciously done. Second count. The foregoing facts are repeated, and it is added that defendant maliciously and willfully entered and broke plaintiff's close where the hogs were, and drove them away, to plaintiff's damage in the sum of $305, "being the value of said hogs and damages for the trespass thus committed against plaintiff's said rights and upon his said premises." Plaintiff also prays in the second count for $500 exemplary damages for the wanton and malicious acts alleged. In each of the foregoing counts plaintiff charges that he is the owner of the hogs. The answer of defendant admits that May 25, 1899, plaintiff was the owner of the premises, denies that he was in possession thereof, and charges that said premises were at that time in possession of two other named persons. Defendant alleges that he was the owner of the hogs, which plaintiff caused to be taken to the latter's premises, where defendant found them May 25, 1899, and that thereupon defendant, with the knowledge and consent of plaintiff and of the persons in charge of the premises, entered the latter, and drove the hogs away, as he says he had the right to do. The answer further denies generally the other allegations of the petition. Plaintiff filed a reply, denying all the new matter in the answer. There was a trial before the court, with the aid of a jury, resulting in a judgment for defendant. Plaintiff appealed after an unsuccessful motion for a new trial and the saving of exceptions. The material facts will be stated along with our rulings.
1. Plaintiff's leading cause of action is his claim for the value of the hogs. On that branch of the case some documentary evidence was offered by plaintiff and excluded by the court. That ruling forms the chief point of controversy on this appeal. Plaintiff's claim of title to the animals is based upon a transfer of them by Mrs. Rickey March 18, 1899, evidenced by a memorandum to the effect that they were delivered in payment of plaintiff's fee as an attorney in a prior case between her and the present defendant, Mr. Jones. It was the record in that case which was excluded. In substance, it shows that the plaintiff therein, Mr. Jones (now defendant), brought a statutory action of replevin against Mrs. Rickey before a justice of the peace in Audrain county March 2, 1899, upon a statement claiming possession of certain hogs, and also of other personal property described; that Mr. Jones, as plaintiff, later (March 7, 1899) filed an amended statement, omitting the hogs, which had not been seized under the order of delivery, and claiming only a portion of the other property first demanded; that afterwards a judgment in favor of plaintiff was rendered for possession of the property, 1 mill damages, and costs. The offer of this record was declared by plaintiff's counsel to be "for the purpose of showing a splitting of his cause of action by Mr. Jones against Mary E. Rickey." Objection being made to the competency and relevancy thereof, the record was excluded, and exception duly saved.
The previous testimony in the case at bar tended to show that business dealings between Mrs. Rickey and Mr. Jones had taken place, leading to the replevin suit before the...
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