Hale v. Dever

• Decision Date: 30 April 1878
• Citation: 67 Mo. 732
• Parties: HALE v. VAN DEVER, Appellant.
• Court: Missouri Supreme Court

67 Mo. 732

HALE

v.VAN DEVER, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from DeKalb Circuit Court.--HON. JOSEPH P. GRUBB, Judge.

Shanklin, Low & McDougal and S. S. Brown for appellant.

Bennett Pike and Vinton Pike for respondent.

HENRY, J.

This suit originated in a justice's court and was appealed to the circuit court, where plaintiff obtained a judgment, from which defendant has duly appealed to this court. The following is the statement filed by plaintiff in the justice's court: “Plaintiff states that about the 1st day of February, 1875, at the county of De Kalb, State of Missouri, defendant did wrongfully maim, wound and kill the hogs of plaintiff, by which acts and doings of the defendant plaintiff is damaged in the sum of $40, for which, with costs of suit, plaintiff asks judg ment.” The evidence established the fact that defendant's dogs killed the plaintiff's hogs, and, while there was evidence tending to show that defendant's dogs were fierce and in the habit of worrying stock, and that defendant was aware of their vicious propensity, there was none whatever conducing to prove that defendant set the dogs on the plaintiff's hogs, or was aware that they were worrying them. Evidence on the part of defendant tended to prove that he did not know that his dogs were fierce and vicious, and in the habit of worrying stock.

1. JUSTICE'S COURT: statement of cause of action.

Defendant contends that there was a material variance between the statement and the proof; that the evidence established a cause of action different from that contained in the statement. Section 13 of the act in relation to justice's courts, Wagner's Statutes, page 814, provides that “in every suit not founded on an account or an instrument of writing, a statement of the facts constituting the cause of action shall be filed with the justice before any process shall be issued in the suit.” The same provision is to be found in the revised statutes of 1855, and in the case of Coughlin v. Lyons, 24 Mo. 534, decided in 1857, the plaintiff filed the following statement with the justice: “James Lyons and Edward Sullivan, partners, as Lyons & Sullivan, to Peter J. Coughlin, Dr. 1855, February 20th. To forty-one hams, 464 1/2 pounds, at ten cents, $46.45; two barrels of whisky, seventy-seven and one-half gallons, at twenty-eight cents, $21.70; total, $68.15.” The evidence showed that the defendant caused a constable to take this property from plaintiff's possession at the suit of defendant against another person, and that the constable still had possession of the property of which plaintiff was proved to be the owner. This court held that the cause of action contained in the statement was in form for money had and received. It appears to us to have been for goods sold and delivered; but, however this may be, the court observes that “the action may be considered as trespass or trover, according to the nature of the real transaction, and the plaintiffs may waive the tort and sue for so much money had and received. To this it is said that, in the suit for money had and received, to be sustained, there must be proof of the sale of the property taken and money received therefor. In co...