Falloon v. Fenton

• Decision Date: 02 June 1914
• Docket Number: No. 1047.,1047.
• Citation: 167 S.W. 591,182 Mo. App. 93
• Parties: FALLOON v. FENTON.
• Court: Missouri Court of Appeals

167 S.W. 591

182 Mo. A. 93

FALLOON v. FENTON.

No. 1047.

Springfield Court of Appeals. Missouri.

June 2, 1914.

1. TRESPASS (§ 46)—EVIDENCE—SUFFICIENCY.

In an action against defendant for damages for entering upon plaintiff's land and cutting timber, evidence held to sustain a finding by the jury that the timber cut was on plaintiff's land.

2. NEW TRIAL (§ 128)—MOTION—SPECIFICATION OF ERRORS.

A motion for a new trial "because the verdict of the jury is not supported by the law and the evidence and the weight of the evidence" was not sufficiently definite except on the assignment that the verdict was against the weight of the evidence.

3. APPEAL AND ERROR (§ 1003)—REVIEW— VERDICT.

An appellate court will not interfere with a judgment because against the weight of the evidence, unless it clearly appears that there was an abuse of discretion by the trial judge in refusing to set aside the verdict.

4. JUSTICES OF THE PEACE (§ 91)—COMPLAINT —TRESPASS.

A complaint in a justice's court, stating that defendant, without leave, wrongfully entered upon plaintiff's land and cut timber of a certain value, and asking judgment under Rev. St. 1899, § 4572, was sufficient.

5. PLEADING (§ 433)—AIDER BY VERDICT— COMPLAINT.

Where defendant, prior to the rendition of verdict, does not question the sufficiency or form

of the complaint, any defects therein, not vital, are cured by the verdict.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by William Falloon against Samuel Fenton. Judgment for plaintiff on appeal from a justice's court, and defendant appeals. Affirmed.

M. E. Rhodes, of Potosi, for appellant. Roy Clymer, of Steelville, and John W. Booth, of Washington, Mo., for respondent.

FARRINGTON, J.

On April 18, 1910, plaintiff (respondent) recovered a judgment against the defendant (appellant) in a justice's court in Crawford county for the sum of $1 on a cause of action stated as follows:

"Plaintiff states that on or about the 18th day of April, 1909, and at various and divers other times since, the defendant, without leave, wrongfully entered on the east one-half of lot 6, of the northwest quarter of section 4, township 39, range 2 west, of Crawford county, Mo., of which the plaintiff was then the legal owner, and then and there cut timber to the value of $50 and carried it away, by which acts and doings of defendant plaintiff was damaged to the amount of $125, for which plaintiff asks judgment under section 4572, Revised Statutes 1899."

From that judgment the defendant appealed to the circuit court, where, after two mistrials, the plaintiff again recovered judgment for $1, and it is from this that defendant appeals.

In the motion for a new trial the only ground stated is as follows:

"Because the verdict of the jury is not supported by the law and the evidence and the weight of the evidence."

There is substantial competent evidence in the record before us tending to support the following statement of facts: Plaintiff and defendant are adjoining landowners, their farms being divided by a township line; plaintiff owning the land north and defendant owning the land south of such line. The defendant cut trees which the evidence shows were worth from $1 to $5 in value. There is no controversy thus far. The plaintiff contends that such trees were south of the line, and therefore on his land, and the defendant claims that his acts were done north of the line, and therefore on his land. The plaintiff showed by John Smith, the county surveyor at the time of the trial, that he had run the line in question several times, and that the trees cut were south of the line which he established as the township line; the same being the boundary line between the parties. Other witnesses swore that the timber was cut south of the line established by John Smith. This witness (John Smith) also testified that one Griffith, a civil engineer, in company with him run the line, which survey is referred to in the evidence as the Griffith survey, Griffith using the instrument and the witness making the notes, and that the Griffith line at the...