Ewing v. Leaton

• Decision Date: 31 January 1853
• Citation: 17 Mo. 465
• Parties: EWING et al., Appellants, v. LEATON et al., Respondents.
• Court: Missouri Supreme Court

17 Mo. 465

EWING et al., Appellants,

v.LEATON et al., Respondents.

Supreme Court of Missouri.

January Term, 1853.

1. Under the first section of the act concerning “trespass,” (R. C. 1845,) where a plaintiff, in his petition, claimed damages for a wrongful entry upon his land and for timber cut and carried away, and there was a general verdict in his favor, and an entire assessment of damages, with no finding of the value of the timber, it was held, that the damages could not be trebled.

Appeal from Lafayette Circuit Court.

Leonard, for appellants.

Adams, for respondents.

RYLAND, Judge, delivered the opinion of the court.

This was a petition under the new code of practice, for trespassing upon the plaintiffs' land, and cutting down and carrying off timber, &c. The petition is as follows: “Plaintiffs state, that on the first day of April, A. D. 1849, and on divers other days in the months of April, May, June and July, 1849, defendants, without leave, and wrongfully, entered upon land not their own, to-wit: the west half of the south-west quarter of section number twenty, of township number forty-nine, and of range number twenty-seven, at the county of Lafayette and state of Missouri, of which land the plaintiffs were then and are now the owners, and then and there cut down and carried away timber, then standing, being and growing on said land, to-wit: one hundred white oak trees; one hundred black oak trees; one hundred black walnut trees, and one hundred other trees of great value, to-wit: of the value of two hundred dollars, contrary to the form of the statute in such case made and provided, to the damage of the plaintiffs six hundred dollars, for which they ask judgment.”

The defendants answered: “They deny that they or either of them entered on land on the first day of April, 1849, or on divers other days in the months of April, May, June and July, 1849, without leave and wrongfully, of which the plaintiffs were then or now are the owners in the petition as alleged. They deny cutting down and carrying away timber, &c., and deny that the plaintiffs are the owners of said land. They admit that about the time mentioned in the petition, they did cut down and carry away from said land the timber of about forty-five trees, or such parts thereof as were fit to be used for rails; that said trees were worth, and of the value of about twenty-five dollars, and no more, as defendants believe; but they say that defendant, William H. Ewing, claimed, and as defendants believed, had a just title to said land, and said timber was taken by the authority and under the license of said William H. Ewing; and defendants cut and took said timber in good faith, believing that they had a right so to do; and insist that said William H. Ewing then was and still is owner of said land, and deny that plaintiffs are the owners of said land, as alleged, and require proof thereof.”

A trial was had at the May term, 1852, of the Circuit Court of Lafayette, and the jury returned the following verdict: “We, the jury, find the issues for the plaintiffs, and assess their damages at the sum of one hundred dollars.”

The plaintiffs moved the court for judgment for treble the damages; this motion the court sustained, and rendered judgment for the sum of three hundred dollars, treble the damages.

The defendants then moved in arrest of judgment and for a new trial, which being overruled, they excepted and prayed an appeal to the Supreme Court.

The parties have preserved none of the evidence on the trial, therefore no notice will be taken in this court of the motion for a new trial. The motion in arrest of judgment, and the action of the Circuit Court upon that motion, will be the only matters...