Elliott v. Black

• Decision Date: 28 February 1870
• Citation: 45 Mo. 372
• Parties: WM. H. ELLIOTT, Appellant, v. F. S. BLACK et al., Respondents.
• Court: Missouri Supreme Court

45 Mo. 372

WM. H. ELLIOTT, Appellant,

v.F. S. BLACK et al., Respondents.

Supreme Court of Missouri.

February Term, 1870.

Appeal from Fourth District Court.

Burgess & Mullins, for appellant.

I. The court having failed to assess the damages when the suit in replevin was dismissed, or to render judgment for the return of the property, the defendant in that action and the plaintiff in this was entitled to judgment on the bond for all damages sustained. (Berghoff v. Heckwolf, 26 Mo. 511; Reed v. Wilson, 13 Mo. 28; Smith v. Winston, 10 Mo. 299.)

II. There is nothing on the face of the petition which shows that the justice did not have jurisdiction of the cause. It was a question of proof as to whether the frame building was real or personal property.

G. W. Easley, for respondent

CURRIER, Judge, delivered the opinion of the court.

This is a suit on a return bond executed by the defendants in a replevin suit then pending before a justice of the peace. That suit was taken by appeal to the Circuit Court, and there dismissed; whereupon the defendant therein (the plaintiff here) instituted the present proceedings upon the replevin bond. At the trial of the present suit in the Circuit Court, the plaintiff offered to read in evidence the bond sued on. It was objected to by the defendants, and excluded by the court, on the ground that the justice before whom the replevin suit was brought, and in which the bond was given, had no jurisdiction of the action. For the same reason all the other evidence offered by the plaintiff was objected to and excluded--the court, in effect, holding that the plaintiff's petition disclosed no cause of action. The District Court took the same view of the matter, and the plaintiff brings the case here by appeal. I have searched the record in vain to ascertain upon what specific ground it was held that the justice had no jurisdiction of the replevin suit. The record and the defendants' brief are equally silent on the subject. The pleadings show that the replevin suit was brought to recover possession, as of a personal chattel, of a “frame building” of the alleged value of seventy-five dollars. That amount is not in excess of a justice's jurisdiction in such cases. (Gen. Stat. 1865, p. 697, § 3.) But it would seem to have been supposed that the terms “frame building” ex vi termini, imported real estate, and that the suit for the recovery of the building should, therefore, have been brought in ejectment, and before a higher court. Whether the...