Froust v. Bruton

• Decision Date: 31 March 1852
• Citation: 15 Mo. 619
• Parties: FROUST v. BRUTON, ADM'R OF LEE.
• Court: Missouri Supreme Court

15 Mo. 619

FROUST

v.BRUTON, ADM'R OF LEE.

Supreme Court of Missouri.

March Term, 1852.

APPEAL FROM NEW MADRID CIRCUIT COURT.

RYLAND, J.

The plaintiff filed his petition in the New Madrid Circuit Court against the defendant, William P. Bruton, administrator de bonis non of the estate of Squire Lee deceased, charging, that the intestate, Lee, in his life-time, entered upon a certain tract of land belonging to the petitioner, and that he took and carriee away certain houses and house-logs to the value of thirty dollars; and also took and carried off two thousand rails worth twenty-five dollars, and that he cut down and carried off house-logs to the value of ten dollars. The defendant failed to appear and answer, and judgment was taken by default against him, and a writ of inquiry of damages awarded, returnable at the succeeding term of the court. The defendant afterwards moved to set aside the judgment by default but his motion was overruled.

At the subsequent term, the plaintiff proceeded to have the writ of inquiry executed, and offered evidence to the jury of the value of the house-logs and rails which had been taken off; the defendant objected to this evidence, because the writ of inquiry was not executed at the same term the default was had; alleging that it could not be executed now, because a full term had intervened between the default and the inquest. The plaintiff showed an order of court continuing all cases not otherwise disposed of, and defendant's objections were overruled, and he excepted. The plaintiff then proved the value of the house-logs and the rails which had been taken off, the rails having been put up in a fence. The defendant offered to prove, that the fence did not belong to the plaintiff. The plaintiff objected and the court sustained the objection, and the defendant excepted. The defendant offered also to read in evidence, a transcript of the record and proceedings of a suit before a justice of the peace, in which the trespasses complained of in this action had been adjudicated between the plaintiff and the defendant's intestate, in his life-time, which was objected to and ruled out by the court, to which the defendant excepted. The jury assessed the plaintiff's damages at fifty dollars.

The defendant moved an arrest of judgment, assigning as reasons; 1st. That an administrator cannot be sued for a trespass committed by his intestate, as alleged in plaintiff's petition. 2nd. That the court erred in rendering judgment by default in...