Jeans v. Morrison

• Decision Date: 03 March 1903
• Citation: 73 S.W. 235,99 Mo. App. 208
• Court: Missouri Court of Appeals
• Parties: JEANS v. MORRISON.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 235

99 Mo. App. 208

JEANS v. MORRISON.^*

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

MUNICIPAL CORPORATIONS — IMPOUNDING STRAY ANIMALS — ORDINANCES — JUDGMENT — REPEAL OF ORDINANCE — NONRESIDENT OWNER — SETTING ASIDE VERDICT.

1. Under the express provisions of Rev. St. 1899, § 5959, cities of the fourth class are empowered to regulate or prohibit the running at large of horses and other animals; to provide for the erection of suitable pounds, pens, and

buildings; and to enforce rules governing the same.

2. An ordinance made it unlawful for the owner of horses, mules, or asses to permit the same to run at large inside the corporate limits, and provided that, if such animals were found at large, they should be restrained by the marshal in a suitable place. It further provided for notice to the owner, and that, on failure to pay the costs incurred, the animal would be sold under judgment of the police judge, etc. A subsequent ordinance referred to the preceding ordinance, but, besides horses, mules, and asses, made it unlawful for the owner of sheep, fowls, swine, or poultry to suffer the same to run at large, and provided for impounding, notice, judgment, and sale according to the provisions of the prior ordinance. Held, that the second ordinance did not operate to repeal, but to enlarge the scope of, the first.

3. An ordinance provided that on due proof that an animal had been found running at large and impounded, and that proper notice had been given, the police judge should make and enter on his record an order for the sale of the animal to pay the costs and expenses; reciting the facts and specifying the items of cost. An animal was impounded, and the items of cost were entered on the margin of the judgment. Held a sufficient compliance with the ordinance.

4. An ordinance providing for the impounding and sale of animals found running at large within the corporate limits is a valid police regulation.

5. An animal found running at large within the city limits may be impounded, though the owner is a nonresident of the city.

6. An appellate court may set aside a verdict where it is manifestly arbitrary and dictated by prejudice.

Appeal from Circuit Court, Newton County; H. C. Pepper, Judge.

Replevin by R. M. Jeans against D. B. Morrison. Judgment for plaintiff, and defendant appeals. Reversed.

John T. Sturgis, for appellant. James H. Pratt, for respondent.

Statement of Facts and Opinion.

GOODE, J.

The marshal of Neosho, Mo., a city of the fourth class, took up a mare which was straying about the city on July 5, 1901, and put her in the city pound. He afterwards published notice for 10 days of the impounding of the animal; giving an accurate description of her, by printed handbills posted in the hall of the courthouse, in the post office of the city, and in several other places; likewise sending out several of the notices by mail. The handbills stated where the stock pound was, to wit, at Brown's Livery Stable, at the southeast corner of the public square, described the mare as a small roan sorrel mare, small white spot on forehead, about five years of age, slender build, and about 14½ hands high, which is the way she is described by the plaintiff in his statement in this case. The handbills also notified the unknown owner that unless he claimed the animal from the pound, and paid the costs of her keep and of the proceedings connected with her restraint, in 10 days from July 5, 1901, she would be sold under judgment of the police judge of the city, and the proceeds applied to the payment of said costs. No owner appeared to claim the animal in the time fixed. So, on the 16th of July, Pearman, the marshal, made oath before the police judge of the impounding of the animal (describing her), of the notices he had published, and that no owner had appeared to show cause why she should not be sold. Thereupon the police judge entered an order directing the marshal to sell the mare to the highest bidder, for cash in hand, at public vendue, giving notice of the time, terms, and place of sale by handbills posted as required by ordinance, and to pay out of the proceeds of the sale the costs of impounding, keeping, and feeding the animal, and of the proceedings in the action to sell, and to turn the remainder of the proceeds into the treasury of the city for the owner of the animal. On the margin of the judgment was an itemized statement of the fees and costs which had accrued for the restraint and care of the mare and the sale. The marshal forthwith gave notice by handbills that he would sell the mare July 22, 1901, between the hours of 9 o'clock in the forenoon and 2 o'clock in the afternoon, at the southeast corner of the public square in the city of Neosho, at public vendue, for cash in hand, to pay the costs of detention and of the subsequent proceedings; the notice containing an accurate description of the mare. Sale was accordingly made on the day named in the notice, and the animal was bought by one Brown, who subsequently sold her to Reagan, who, in turn sold her to defendant, Morrison, in whose possession she was discovered by the plaintiff some time in September, 1901, and this action of replevin instituted to recover her from Morrison.

The mare strayed from the owner's farm in May, 1901, and was at large until she was impounded, in July. When taken up she was in bad condition, very thin in flesh, and with swollen legs; owing, it is said, to the dry weather. Jeans looked for her when she escaped from his premises, and, in the course of his search, made inquiries; but he testified he made no inquiry at the Neosho Stock Pound, nor asked where the pound was, though he visited Neosho.

Two ordinances of said city were introduced in evidence; the first being Ordinance No. 36, enacted August 3, 1897, which made it unlawful for the owner of horses, mules, or asses to permit the same to run at large inside the corporate limits of Neosho, and outside the inclosure of the owner or person having them in charge. Said ordinance also provided that, if any such animals were found at large inside the city limits, it should be the duty of the marshal to restrain them in a suitable place to be procured by said marshal under an order of the board of aldermen, which place should be known as the city stock pound; that such animal or animals should be safely kept therein until disposed of as provided by the ordinance. As to the disposition of the animals which might be impounded, the ordinance provided that the owner should be notified by written or printed handbills posted in the courthouse and post office, as the most public places in the city; that the notice should contain a true description of any animal restrained; that the owner, if known — otherwise the unknown owner — should be notified to claim or take the animal from the pound, the locality of which should be designated; and that the owner should pay the costs incurred, or the animal would be sold...