Emory v. Phillips

• Decision Date: 31 March 1856
• Citation: 22 Mo. 499
• Parties: EMORY AND OTHERS, Respondents, v. PHILLIPS, Appellant.
• Court: Missouri Supreme Court

22 Mo. 499

EMORY AND OTHERS, Respondents,

v.PHILLIPS, Appellant.

Supreme Court of Missouri.

March Term, 1856.

1. Where in a petition it was charged that the defendant, “without leave and wrongfully entered upon a certain tract of land (describing it) of which plaintiffs were the owners and in possession thereof, &c., and took from said premises a house thereon situated, used and employed as a Methodist meeting-house or church, and carried said house off,” &c. held, that an answer, in which defendant “denies that he wrongfully entered upon the premises and took therefrom a Methodist church or meeting-house of said plaintiffs; and the defendant charges the fact to be, that the house spoken of, was his (defendant's) property and not owned or claimed by plaintiffs,” (defendant also in the answer claiming permission from one of the plaintiffs to “do as he pleased with” said house, and denying plaintiff's possession,) admits the entering and taking away of the house.

2. In impeaching a witness, evidence of his general character for truth and veracity, among a majority of his neighbors, is inadmissible.

Appeal from Cape Girardeau Circuit Court.

This suit was originally commenced before the New Madrid Circuit Court, whence it was taken by a change of venue to Cape Girardeau Circuit Court. It was an action by plaintiffs, as trustees of the Methodist Episcopal church south, to recover damages for the alleged removal by the defendant of a meeting-house belonging to plaintiffs. The allegations of the petition and answer, so far as they bear upon the decision of this court, are sufficiently set forth in the opinion of the court. The finding of the court is as follows: “That said defendant, before the commencement of this suit, did enter upon the tract of land in plaintiffs' petition mentioned, and sever and take away from said land a house of the value of $250; that, at the time of said entry and the taking of said house, the plaintiffs, as trustees of the Methodist Episcopal church south, were the owners of said land; by reason of which said entry, severance, and taking of said house, the plaintiffs have sustained damage to the sum of $250.””” Judgment was accordingly given for plaintiffs for that sum.

In the course of the trial, portions of certain depositions introduced in evidence by defendant, which were offered with a view to impeach one G. S., a witness for plaintiffs, were excluded by the court. The following questions and answers, contained in the depositions of John Freeman and B. S. Hacker, respectively, were excluded by the court: “Ques. (to J. F.) Are you or not acquainted with G. S.; and if so, state what is his general reputation for truth and veracity among his neighbors? Ans. I am personally acquainted with G. S., and his general character for truth and veracity, among his neighbors, is bad; I have heard some of them say that they would not believe him on oath. Ques. (to B. S. H.) Are you or not acquainted with G. S., and do you know the character he bears, among a majority of his neighbors, for truth and veracity? Ans. Yes; I am well acquainted with G. S., and his general character for truth and veracity, among a majority of his neighbors, is bad, and he is not to be believed.” To the exclusion of these answers defendant excepted.

Polk, for appellant, cited 13 Mo. 236; Swift's Evidence, 143; 3 S. & R. 336; 2 Hayw. (N. C.) 300; 3 Bibb, 268; 19 Maine, 375; 17 Mo. 550.

N. Holmes, for respondents.

RYLAND, Judge, delivered the opinion of the...