Johnson v. Moffett

• Decision Date: 27 October 1885
• Citation: 19 Mo.App. 159
• Parties: W. W. JOHNSON, Respondent, v. T. MOFFETT ET AL., Appellants.
• Court: Missouri Court of Appeals

19 Mo.App. 159

W. W. JOHNSON, Respondent,

v.T. MOFFETT ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Oct. 27, 1885.

APPEAL from the Clark Circuit Court, BEN. E. TURNER, Judge.

Affirmed.

REED & WHITSIDE, and W. L. BERKHEIMER, for the appellants: The application for a change of venue should have been granted. Corpenny v. Sedalia, 57 Mo. 88. There is no allegation of ownership of the injured property. Wiggins v. Graham, 51 Mo. 17; Pier v. Heinrichoffen, 52 Mo. 333; Curran v. Downs, 3 Mo. App. 468. One who offers to give testimony as an expert must be shown to be qualified to do so.

WOOD & MONTGOMERY, for the respondent: The application for a change of venue did not comply with the requirements of the statute. Rev. Stat., sects. 3731, 3732; Lewin v. Dille, 17 Mo. 64; Corpenny v. Sedalia, 57 Mo. 88; Byrne v. St. Louis Public Schools, 12 Mo. 402; Mix v. Kepner, 81 Mo. 93. The allegations of the statement were sufficient. Allen v. McMonagle, 77 Mo. 478; Hale v. VanDever, 67 Mo. 732; Coughlin v. Lyons, 24 Mo. 534.THOMPSON, J., delivered the opinion of the court.

This was a suit commenced before a justice of the peace for damages for killing a horse, and injuring another horse, by over-driving. On an appeal to the circuit court and a trial by a jury, the plaintiff had a verdict for seventy-five dollars and interest. He remitted the interest, and judgment was rendered for the principal, from which the defendants have appealed. The errors relied on to reverse the judgment are:

1. That the court erred in overruling the defendant's motion for a change of venue. The record merely discloses that such a motion was made, supported by an affidavit of prejudice in the presiding judge, and overruled at the April term, 1884, a year before the term at which the cause was tried, and it does not disclose the fact that any notice was given of the motion, as required by section 3733, Revised Statutes. In order to put the judge in the wrong for overruling such a motion, the record must show that the statute was complied with; and, as it fails to show this, we must hold that this assignment of error is not well taken.

2. The next assignment of error is that the court erred in admitting any testimony on the part of the plaintiff. This is predicated upon the contention that the statement of the plaintiff's claim, made before the justice of the peace, is fatally defective, in that it fails to state that the plaintiff was the owner of the horses killed and injured by the negligence of the defendants. The statement is as follows: “Plaintiff states that he is and was at the time of the grievances hereinafter mentioned, the owner and sole proprietor of a livery stable, located in the town of Kahoka, in Clark county, Missouri, and kept therein horses and buggies which he hired for a valuable consideration to his customers.” It then proceeds to allege the hiring by the plaintiff to the defendants of two horses, and their maltreatment by the defendants, whereby one of them died and the other was greatly injured. We think that this statement is sufficient in a proceeding commenced before a justice of the peace. In such cases the policy of the law indulges defectiveness of statement, even where constitutive facts are omitted, so that it is necessary to resort to implication in order to support the statement. Strathmann v. Gorla, 14 Mo. App. 1; Morris v. Buckley, 9 Mo. App. 577. In Allen v. McMonagle (77 Mo. 478), the action was for the conversion...