Evans v. Holman

• Decision Date: 19 March 1907
• Citation: 202 Mo. 284,100 S.W. 624
• Parties: EVANS v. HOLMAN et al.
• Court: Missouri Supreme Court

100 S.W. 624

202 Mo. 284

EVANS v. HOLMAN et al.

Supreme Court of Missouri, Division No. 2.

March 19, 1907.

1. ANIMALS — RUNNING AT LARGE — ORDINANCE —CONSTRUCTION.

Under an ordinance, penalizing the permitting of animals to run at large in a city directing the marshal to impound such animals, and authorizing redemption by the owner before sale for accrued costs, an animal may be impounded, though at large through no fault or the owner.

2. MUNICIPAL CORPORATIONS—ORDINANCES— POLICE POWER — ANIMALS RUNNING AT LARGE.

Under Rev. St. 1899, § 5959 [Ann. St. 1906, p. 3011], authorizing cities of the fourth class to regulate or prohibit the running at large of certain animals, to impound such animals running at large, and to penalize owners permitting them to so run, such cities may by ordinance provide for the payment of reasonable costs incurred in impounding such animals, and retain them until such costs are paid, though they be at large through no fault of the owner.

Appeal from Circuit Court, Randolph County; John A. Hockaday, Judge.

Action by J. H. Evans against J. R. Holman and another. From a judgment for plaintiff, defendants appealed to the Kansas City Court of Appeals, and the cause was certified by that court to the Supreme Court. Reversed, and judgment directed for defendants.

This cause was certified to this court by the Kansas City Court of Appeals for the reason, in the opinion of that court, the conclusions reached were in conflict with the rules announced by the St. Louis Court of Appeals in McVey v. Barker, 92 Mo. App. 498. This appeal is from a judgment of the circuit court of Randolph county, Mo. It is a suit for the claim and delivery of personal property, commonly called an "action of replevin." The property involved in this controversy was a cow belonging to the plaintiff. This cow was in the possession of J. R. Holman, marshal of the city of Huntsville, Mo., and he justifies such possession under the provisions of ordinances of such city. Plaintiff's cow had escaped from a pasture, and went upon the streets of the city where she was found and taken charge of, and put in the city pound by city officers. The officer refused to surrender the cow to the plaintiff unless he would pay the costs incident to impounding her. Plaintiff refused to pay such costs, and brought the present action of replevin for the recovery of his property. We deem it unnecessary to undertake to detail all of the testimony introduced upon the trial of this cause. It is sufficient to say that there was evidence tending to show that the escape of plaintiff's cow from the pasture was by reason of some of the gates being left open, and not with his knowledge and consent, nor was such escape by reason of any negligence on his part. The cow was taken up by the city officials on the streets on the evening of May 28, 1900, and it was not until May 31st that the plaintiff, through his counsel, demanded the possession of her. There was some evidence tending to show that this cow had been found upon the streets and taken up on previous occasions. It was agreed between the parties to this action that the city of Huntsville is a city of the fourth class, duly incorporated under the general statutes of the state of Missouri, relative to the incorporation of cities, towns, and villages. The first section of an ordinance of the city provides that whoever shall permit his domestic animals to run at large within the city limits shall be deemed guilty of a misdemeanor. The second section provides that the city marshal shall take up and impound any animal found running at large within the city limits; and section 3 provides that he may sell it on proper notice. Section 4 provides that whenever any animal is taken up and impounded, the owner at any time before sale may redeem it by paying the proper costs of impounding; but that such redemption would not prevent his being prosecuted for permitting it to be at large. At the close of the evidence, the court declared the law as in its opinion was applicable to the facts, and, under the declarations of law and the evidence introduced, the court, sitting as a jury, found for the plaintiff, and entered judgment against the defendants in the sum of one cent damages, and for the possession of the cow. Timely motions for new trial and in arrest of judgment were filed, and by the court overruled, and, from the judgment in this cause, the defendants in due time and proper form prosecuted their appeal, and the record is now before us for review.

J. H. LaMotte, for appellants. Martin & Terrill and Aubrey R. Hammett, for respondent.

FOX, P. J. (after stating the facts).

The respective contentions of respondent and appellants upon this cause, as disclosed by the record, may thus be briefly stated: Upon the part of the respondent it is earnestly insisted that the facts developed at the trial of this cause bring it directly within the rules of law announced by this court in Spitler v. Young, 63 Mo. 42. On the other hand appellants contend that the law, as announced in McVey v. Barker, 92 Mo. App. 498, is decisive of the propositions disclosed by the record before us. The case at bar is identical in principle with the case of McVey v. Barker, supra. It follows therefore if the rules of law as applied in that case are sound they should be followed and should control the conclusions in the case before us. It is insisted, however, by respondent that the case of McVey v. Barker, supra, is in conflict with Spitler v. Young, heretofore cited. We have carefully considered the opinion of Judge Wagner in Spitler v. Young, and, in our opinion, it is readily to be distinguished from the McVey Case and the case at bar. There is a marked distinction in these cases, and this distinction is clearly pointed out by Judge Barclay in the McVey Case. He said, respecting the action of the lower court, that "the trial court was obviously endeavoring to follow the doctrine of Spitler v. Young, 63 Mo. 42. The circumstances of that case were peculiar, and they differ essentially from those presented in the case at bar. Spitler, the plaintiff, who claims the hogs which wandered into the town of Trenton, was declared not guilty of any fault, because the pen in which he had kept his hogs was washed away by a flood, `a power over which plaintiff had no control'; in other words, by the act of God. It further appeared that the plaintiff made every requisite effort to recapture the animals; and, though they were `physically found' in the streets of Trenton, it was held that the spirit of the ordinance of that town did not reach them or their owner for the purpose of punishment. Therefore a recovery of the hogs by plaintiff was sustained. The escape of the hogs in the first place from the owner's premises was viewed as unavoidable, and his attempt to reclaim them exhibited `requisite diligence.' So the court held that plaintiff was not subject to the penalties imposed by the local ordinance under the charter of Trenton. (Laws 1874, p. 409)." Further marking the distinction, Laddonia being the town involved in ...