Floyd v. Wiley
| Citation | 1 Mo. 430 |
| Parties | FLOYD v. WILEY. |
| Decision Date | 31 May 1824 |
| Court | United States State Supreme Court of Missouri |
This was an appeal from a Justice of the Peace to the Circuit Court of Jefferson county, and from the Circuit Court to this Court. The action was to recover the value of a horse. No regular proceedings were made up, but from the record and pleadings returned, the trials were, in both courts, in assumpsit, for a horse sold. The bill of exception says, “it was admitted that the summons, in this case, stated the action to be on an account. for fifty dollars.” But no objection appears to have been made to the form of action. All that this court will do in examining into the form of the action, on an appeal from a Justice of the Peace, will be to see that the Justice had jurisdiction of the subject matter. A Justice of the Peace has jurisdiction of action on book account, promise, or for goods, wares, merchandise, or other property, sold and delivered. The action stated in the summons to be on an account for fifty dollars, must mean on book account. It goes for damages, and therefore cannot mean that it was an action of account, when the judgment is, that the parties shall account together. The summon is good in substance, and defects in form cannot be regarded in this proceeding. Even if the summon had been bad in substance, still as the action tried before the Justice was such as he had jurisdiction of, I should consider all objections to the process as waived.
The next objection made in this case is, that assumpsit cannot be maintained upon the evidence set forth in the bill of exceptions. The bill of exceptions states that the horse belonged to one David Beard; that he ran away and came into the possession of one McCullouch, of whom Beard had bought the horse; and while he was so in possession of McCullouch, Beard sold the horse to plaintiff; that after the sale to the plaintiff, the horse came to the possession of the defendant, who converted him to his own use; that plaintiff demanded the horse, and defendant refused to give him up. Upon this testimony the defendant's counsel moved the court to instruct the jury, that the plaintiff could not recover in this action; which instruction was given. We are of opinion the court erred in this instruction. It was competent for the plaintiff to waive the tort, and proceed in assumpsit.(a) It does not lie in the mouth of the defendant to say he is a trespasser. In the case of Cummings and wife v. Noyes, 10 Mass. Rep. 436, in a...
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Cowan v. Young
... ... defendant, with interest thereon from May 12, 1913, at the ... rate of six per cent per annum. [ Floyd v. Wiley, 1 ... Mo. 430 and 644; Tamm v. Kellogg, 49 Mo. 118, 120; ... Gordon v. Bruner, 49 Mo. 570, 571; ... Johnson-Brinkman Co. v ... ...
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Mathes v. Switzer Lumber Company
...on the principle of law that a tort may be waived and suit brought on an implied promise to pay, in the nature of assumpsit. [Floyd v. Wiley, 1 Mo. 430; v. Bruner, 49 Mo. 570; Crane v. Murray, 106 Mo.App. 697, 80 S.W. 280; Bliss on Code Pleading, sec. 155.] Appellant assigns as error the ac......
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Cowan v. Young
...converted by defendant, with interest thereon from May 12, 1913, at the rate of 3 per cent. per annum. Floyde v. Wiley, 1 Mo. 644; Floyd v. Wiley, 1 Mo. 430; Tamm v. Kellogg, 49 Mo. loc. cit. 120; Gordon v. Bruner, 49 Mo. loc. cit. 571, 572; Johnson-Brinkman Co. v. Central Bank, 116 Mo. loc......
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Cooper v. Commonwealth Trust Co.
... ... in an action of money had and received. An action for money ... had and received will lie and is the proper remedy. Floyd ... v. Wiley, 1 Mo. 430; Floyd v. Wiley, 1 Mo. 643; ... Johnson v. Strater and Thompson, 3 Mo. 359; ... Gordon v. Bruner, 49 Mo. 570; Tann ... ...