Hays v. Hulet

• Decision Date: 04 March 1929
• Docket Number: No. 16490.,16490.
• Parties: HAYS v. HULET et al.
• Court: Missouri Court of Appeals

14 S.W.2d 699

HAYS v. HULET et al.

No. 16490.

Kansas City Court of Appeals. Missouri.

March 4, 1929.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Charles H. Hays against J. G. Hulet and others. Defendants' motion to quash an execution was overruled, and defendants appeal. Affirmed.

James W. Hawes, of Kansas City, for appellants.

W. E. Rainey, of Kansas City, for respondent.

BLAND, J.

This is an appeal from the action of the lower court in overruling defendants' motion to quash an execution issued out of the Circuit Court on a Justice's transcript filed in the office of the Clerk of the Circuit Court.

The suit instituted before the Justice of the Peace was one in replevin. The judgment of the justice recites in part that "the Justice finds the issues in favor of the plaintiff and against the defendants in the sum of for possession of property named in writ, value found to be $150.00 and costs, and that plaintiff and defendant are residents of Jackson County, Missouri, and this cause of action originated in said county, and that at the date of issue of the writ of replevin, the property therein described was in possession of the defendants, that plaintiff is entitled to possession of such property and the defendants wrongfully detained same from the plaintiff, and that at the request and direction of plaintiff judgment is rendered for the assessed value of such property. It is therefore ordered and adjudged by the Justice that the plaintiff have and recover of and from the defendants the said sum of $150.00 and costs of suit herein incurred and that execution issue therefor."

Defendants claim that the court erred in failing to sustain their motion to quash the execution issued upon the judgment, for the reason it is said that the judgment took the form of a straight money judgment when such a judgment is not authorized in a suit in replevin. We think there is no merit in this contention. The judgment does not purport to be a money judgment, such as ordinarily is rendered in an action in assumpsit, as was the judgments involved in the cases of Hamilton v. Clark, 25 Mo. App. 428, and Nichols v. Dodson Lead & Zinc Co., 85 Mo. App. 584, cited by the defendant, but appears to be a judgment attempted to be rendered under Section 3113, R. S. 1919. Said section reads:

"When the plaintiff does not ask for the possession of the property pending the suit, or fails to file the bond required of him, or when the property claimed has not been taken from the possession of the defendant, the cause shall proceed as if the same had been taken by the officer; and if it shall appear from the testimony on the trial, that the property was in the possession of the defendant at the date of the issue of the writ or summons, and that plaintiff was entitled to the possession of the same, and the defendant wrongfully detained the same from plaintiff, the justice or jury shall find for the plaintiff accordingly, and assess the value of the property, and damages for the taking or detention of the same, and injuries thereto, and the justice shall render judgment that the plaintiff recover said property and the damages assessed, with costs of suit, and that if said property shall not be found, or at the discretion of the plaintiff, he shall recover the assessed value of said property, with the damages assessed, and costs of suit."

While the judgment in this case is not an alternative judgment, such as is contemplated by section 3113, and does not assess any damages, it sufficiently complies with the statute, at least as far as the defendant is concerned. Wooldridge v. Quinn, 70 Mo. 370; Proffer v....