Hendrickson v. St. Louis & Iron Mountain R.R. Co.

• Decision Date: 31 October 1863
• Citation: 34 Mo. 188
• Parties: REBECCA J. HENDRICKSON, ADM'X, &C., Respondent, v. THE ST. LOUIS & IRON MOUNTAIN RAILROAD CO., Appellant.
• Court: Missouri Supreme Court

34 Mo. 188

REBECCA J. HENDRICKSON, ADM'X, &C., Respondent,

v.THE ST. LOUIS & IRON MOUNTAIN RAILROAD CO., Appellant.

Supreme Court of Missouri.

October Term, 1863.

Appeal from Jefferson Circuit Court.

Beal and Hendrickson, for respondent.

W. Primm, for appellant.

DRYDEN, Judge, delivered the opinion of the court.

The cordwood--the subject of controversy in this case--originally belonged to the appellant, but was afterwards sold at a constable's sale on a judgment and execution against the appellant, and bought by the respondent's intestate. Notwithstanding the sale, the appellant took and consumed the wood, and the respondent sued for damages thereby sustained.

The respondent's title to the wood is denied on the ground of the supposed insufficiency of the judgment on which the sale rests. The judgment was recovered in an action by the respondent's intestate against the appellant for damages for an alleged trespass to the personal property of the plaintiff. The justice's docket shows, that, the defendant failing to appear at the return term, a judgment by default was taken in the case, the justice first hearing proof in support of the cause of action; that afterwards, and within the time limited for setting aside defaults, on the appearance and motion of the defendant by its attorney, the default was set aside, and the case was set down for trial at a day fixed; and that at the time appointed for the new trial the defendant being again in default, the default was entered, and the justice, on motion of the plaintiff, rendered a judgment confirming the judgment previously vacated.

The “Act concerning practice in justices' courts,” sec. 15, art. VI, R. C. 1855, p. 952, provides that “when a defendant who has been duly served with process, or when a defendant who has once appeared to a suit, the trial of which has been adjourned, shall neglect to appear within three hours after the return of the process or the adjourned time, the justice shall proceed in the cause in the following manner:” * * * * “Second--If the writ be not founded on an instrument of writing as is declared in the preceding clause of this section, and the plaintiff appear in person or by his agent, the justice shall proceed to hear his allegations and proofs, and shall determine the cause as the very right thereof shall appear from the testimony; and if it appear from such testimony that the plaintiff is entitled to recover, judgment shall be rendered by default against the defendant for so much as the testimony shows the plaintiff entitled to, together with...