Garth v. Caldwell

• Decision Date: 31 October 1880
• Citation: 72 Mo. 622
• Parties: GARTH v. CALDWELL, Appellant.
• Court: Missouri Supreme Court

72 Mo. 622

GARTH

v.CALDWELL, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Ralls Circuit Court.--HON. JOHN T. REDD, Judge.

AFFIRMED.

This was an action of replevin commenced originally against Caldwell and one Parsons on the 7th day of December, 1874, to recover several ricks of cordwood, one hundred shocks of corn in the field, thirty shocks of fodder and six acres of corn on the stalk, all alleged by the petition to be upon land occupied by and in the possession of Parsons. Parsons did not answer, and plaintiff subsequently dismissed as to him. Caldwell answered, denying title of property in plaintiff, and averring the ownership of the property to be in Parsons, and that he, as sheriff of Palls county, by virtue of an execution against Parsons, had levied upon the same to satisfy said execution. The property was delivered into the possession of Garth, and was in his possession at the time of the trial. The trial resulted in a general verdict for plaintiff, without any assessment of damages, upon which the court entered judgment that the plaintiff retain possession of the property and recover his costs. Sundry exceptions to the rulings of the court were saved by defendant at the trial; and by agreement of counsel defendant was allowed sixty days after the term in which to prepare and file a bill of exceptions. Such a bill was prepared and presented to the judge for allowance, but was mislaid, so that for a time it could not be found. A second bill was then presented and allowed; but was not filed in time. Out of these transactions grew the mandamus proceedings against the trial judge, the Hon. John T. Redd, reported in 68 Mo. 106. After the decision of that case the defendant again appeared before the court below and filed his motion for a nunc pro tunc filing of the bill and for the proper record entries, tendering the original bill, which had been found since the proceedings in this court, and supporting the motion by affidavits, which motion the court overruled, and the defendant then took a bill of exceptions to this ruling, and incorporated the original bill and affidavits therein. This latter bill was signed by the judge, and upon this the case came to this court. The other facts appear in the opinions.

H. S. Priest for appellant.

1. Among other things, plaintiff demands “six acres of corn on the stalk,” which by all ordinary interpretation means corn in the stalk standing on six acres of ground. Standing corn is part of the freehold, and not subject to replevin. Williams on Person. Prop., (4 Ed.) 19; Chitty Pleadg., (16 Ed.) 182; Vausse v. Russel, 2 McCord 329; De Mott v. Hagerman, 8 Cow. 220; Cresson v. Stout, 17 John. 116; Brown v. Wallis, 115 Mass. 158; Huebschmann v. McHenry, 29 Wis. 655. Growing crops may be taken in execution, because such a levy does not contemplate an actual taking and touching of the property, but simply the pursuit of such a course as is calculated to reduce it to the dominion of the law. Herman on Executions, 235, 340. Replevin does contemplate actual seizure. Ricketts v. Dorrel, 55 Ind. 470; s. c., 4 Cent. L. Jour. 502. Whatever view the court may take as to the right to take matured standing corn in replevin, there certainly is no such right if the crop is still growing. Pratte v. Coffman, 27 Mo. 424; Rowell v. Klein, 44 Ind. 290; s. c., 15 Am. 235; Roberts v. Bank, 19 Pa. St. 75. The petition does not state that the corn is matured. If it be necessary to prove it, it is necessary to aver it. The presumption would be that the corn on the stalk is still growing and unmatured, for the usual course of husbandry is to harvest matured crops. The plaintiff may have a cause of action and may not, but it certainly devolves upon him to state a good cause of action. Embree v. Patrick, 72 Mo. 173.

2. The verdict is general. It does not find the value of the property or assess any damages for the taking and detention, and thus is erroneous. State v. Dunn, 60 Mo. 64; White v. Van Houten, 51 Mo. 577; Burghart v. Brown, 60 Mo. 24; Cates v. Nickell, 42 Mo. 169.

3. The last bill of exceptions shows, 1st, The original bill was correct; 2nd, That the judge had signed a duplicate of it; 3rd, That the bill had been with the clerk from during the term of the court at which it should have been filed until presented to the judge the second time for signature; 4th, That neither the appellant nor his attorneys have been guilty of any negligence in the matter; 5th, That it would be a grievous injustice to the appellant not to allow the bill. Besides, the appellant has a bill duly taken and allowed, incorporating in it the bill taken at the trial term of the court, and which is here in due form as a part of the record. The appellant put himself in the attitude indicated by this court in the case in 68 Mo.

W. C. Foreman for respondent.

That the “six acres of corn on the stalk,” was personal property, cannot be denied by appellant, because he had levied upon the same as the personal property of Parsons, as stated in his answer, and, therefore, it must have been in his possession and capable of actual manual delivery, otherwise he could make no legal seizure and sale of same. R. S., § 2388. If personal property, it was subject to replevin. Morris on Replevin, 58; R. S., § 4844; Gray v. Parker, 38 Mo. 160; Jones v. Dodge, 61 Mo. 368. Corn, whether mature or immature, although unsevered from the ground, belonging to the class of “““ fructus industriales, as distinguished from fructus naturales, such as trees, grass, etc., is a chattel.” Benj. on Sales, 109. Growing crops go as personal property to the executor, and not to the heir. Pratte v Coffman, 27 Mo. 424; Bloom v. Welsh, 27 N. J. L. 177; s. c., 8 Am. L. Reg. 97; 1 Williams on Executors, 596. They may be sold as chattels by parol. Benjamin on Sales, 109; Austen v. Sawyer, 9 Cow. 39; Purner v. Piercy, 40 Md. 212; s. c., 17 Am. 591, and note; 1 Greenleaf Ev., (12 Ed.) § 271, and note. They may be taken on execution and sold as chattels. Herman on Executions, § 219; Whipple v. Foot, 2 John. 418; Stewart v. Doughty, 9 John. 108; Morris on Replevin, 97. The corn was plainly mature. The courts will take judicial notice of the course of seasons and the order of the ordinary crops. The respondent brings his suit to recover not only “corn in the stalk,” but “corn in the stalk and shocks of fodder” all being on a certain farm. These could not co-exist under the ordinary course of farming in this State, if at all, except at a season when the corn on the stalk must be mature and ready to be gathered or cut. 1 Greenleaf Ev., § 271; McIlvaine v. Harris, 20 Mo. 458; Hecht v. Dittman, (Sup. Ct. Iowa, 1880,) 13 Chic. Leg. News 127.

2. The verdict was not such that the defendant could complain.

3. There is no bill of exceptions signed by the judge preserving exceptions to the rulings at the trial.

I.

1. BILL OF EXCEPtions.

SHERWOOD, C. J.

There is no bill of exceptions here that we can regard as such, since the bill which is said to contain the evidence and other proceedings had at the trial, has not been signed by the judge nor otherwise authenticated. On a former o asion, when an alternative writ was asked and granted to compel Judge Redd to produce the original bill of exceptions in this case, or the copy thereof, file the same with the clerk of the Ralls circuit court, and make an appropriate entry nunc pro tunc, etc., etc., it appeared from the return of the judge, which was not traversed, that he had signed a copy of the original bill of exceptions, but after the expiration of the sixty days agreed upon, and we refused to award a peremptory writ, remarking, among other things, in denying that writ, that: “It does not appear that the second bill might not have been prepared and tendered to the judge within the authorized period, nor that the same was so tendered; nor is there any fully satisfactory reason for the delay; and besides all that, the relator has not even caused the bill, though signed out of time, to be presented in term time for filing.” State ex rel. Caldwell v. Redd, 68 Mo. 106. What has become of the bill of exceptions signed by the judge, does not appear, nor is it material for our present purpose to inquire. It is sufficient for us to say that what is termed the original bill of exceptions is not signed by the judge, and, therefore, cannot be regarded by us as preserving any of the matters said to be contained therein.

II.

2. REPLEVIN: crops.

Since there is no bill of exceptions, we can only look to the record proper; and first to the petition: We do not regard that as subject to criticism, because it alleges that part of the property sought to be replevied is “six acres of corn on the stalk.” Whatever opinions were formerly entertained on this point, it seems quite well established now, both in England and in this country, that annual crops, crops raised by yearly labor and cultivation, or fructus industriales, are to be regarded as personal chattels, independent of and distinct from the land, capable of being sold by oral contract, and this without regard to whether the crops are growing or having matured, have ceased to derive any nutriment from the sol. 2 Schouler Per. Prop., 468, et seq. and cases cited; 2 Pingham Real Prop., 184, et seq. and cases cited; Benjamin on Sales, §§ 120, 121, 126, and cases cited

III.

3. ______ _____: pleading.

And even if it had been necessary to have declared that the corn had matured, as claimed by defendant, in order to have shown it to be the subject of replevin, advantage of that defect should have been taken at an earlier stage of the proceedings, by moving to have the petition “made definite and certain.” R. S. 1879, § 3529; Bliss on Code Pleading, § 425, and cases cited. Besides, the code requires that: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties....