De Graw v. Prior

• Decision Date: 31 August 1873
• Citation: 53 Mo. 313
• Parties: HAMILTON DE GRAW, Respondent, v. WILLIAM PRIOR, Appellant.
• Court: Missouri Supreme Court

53 Mo. 313

HAMILTON DE GRAW, Respondent,

v.WILLIAM PRIOR, Appellant.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Carroll Circuit Court.

Ray and Ray, for Appellant.

L. H. Waters, for Respondent, cited, Boyce vs. Blake, 2 Dana, 127; Langworthy vs. Myers, 4 Iowa, 18; Miller vs. Northrup, 49 Mo., 397; Fugate vs. Pierce, 49 Mo., 441.

ADAMS, Judge, delivered the opinion of the court.

This was an action for forcible entry and detainer, commenced before a justice of the peace, where the plaintiff recovered judgment, from which the defendant appealed to the Circuit Court.

In the Circuit Court the plaintiff filed a motion to dismiss the appeal, upon the ground that the justice had no jurisdiction to grant the same. The court overruled this motion, and the plaintiff excepted. The plaintiff makes the point then, that the appeal should have been dismissed, because it was not taken in ten days after the judgment was rendered by the justice. No such ground was made by his motion, and the point is not supported by the record. There was no error in overruling the motion to dismiss the appeal.

The defendant also filed a motion to dismiss the suit, upon the ground that the writ was not properly served on him. This motion was overruled, but no exceptions were saved by the defendant. As this point is not properly here, it is not necessary to notice it.

The parties submitted the case for trial to the court. The only questions presented on the trial, and passed on by the court, were, first, whether the plaintiff, prior to the institution of the suit before the justice, was in the actual possession of the land in controversy; and secondly, whether the defendant forcibly and unlawfully entered on his possession. On each of these issues, evidence was given by both parties in support of their respective views of the case. Among other evidence it appeared that plaintiff had given a title bond for the sale and conveyance of the land, to one Webster. But the title bond did not purport to yield or transfer to Webster the plaintiff's possession, if any.

At the close of the evidence, the court at the instance of the plaintiff and against defendant's objections, declared the law to be, “That upon the evidence in this case the plaintiff is entitled to recover.”

This instruction is manifestly erroneous. It takes the whole case from the jury, or from the court sitting as a jury, and declares as a matter of law, without any finding upon the evidence, that the plaintiff is entitled to recover. Whether the plaintiff was entitled to recover, depended upon the sufficiency and weight of evidence in the cause on the two questions to be passed upon. It was not for the court but the jury, or, which is the same thing, the court sitting as a jury, to pass upon the sufficiency and weight of the evidence.

The defendant asked several instructions, which were refused by the court. The first of which reads, “That if it appears from the testimony in this case, that the defendant, Prior, at the date of the commencement of this suit, was not in the actual possession of the real estate in controversy, or any part thereof, then this finding of the court should be for the defendant.”

This instruction is substantially correct. The wording of the instruction may be technically wrong and liable to mislead a jury. When there is contradictory evidence, a fact may appear from the plaintiff's evidence to be proved, and the defendant's to be disproved. Instructions or declarations of law must leave the court or jury to find from the evidence on both sides the issue or issues between the parties.

The second instruction, asked by the defendant, is subject to the same objection as the first, and to the further objection that there was no evidence to support it. It assumes that the title bond to Webster transferred the possession from plaintiff to him; such was...