Kean v. Newell

• Decision Date: 30 September 1827
• Citation: 1 Mo. 754
• Parties: KEAN v. NEWELL.
• Court: Missouri Supreme Court

1 Mo. 754

KEAN

v.NEWELL.

Supreme Court of Missouri.

September Term, 1827.

APPEAL FROM BOONE CIRCUIT COURT

WASH, J.

This was an action of replevin for a horse, commenced by Newell against Kean, in the Circuit Court of Pike county, and removed by change of venue into the Boone Circuit Court, where the plaintiff, Newell, had judgment; to reverse which, Kean now prosecutes his appeal to this court. The material facts, as preserved in the record, are, that in August, eighteen hundred and twenty-three, two writs of execution were sued out of the Ralls Circuit Court against Newell, by virtue of which the sheriff of Ralls county made sale in September following, of the horse sued for, to one Bates, who sold the same for a valuable consideration to one Longmire, who sold the same for a valuable consideration to Kean, the defendant below. That at the time of the sale by the sheriff to Bates, the property was not present to be seen by and delivered to persons who might wish to purchase; and that many articles of personal property were sold along with the horse, in the same lot or parcel, without being set up or offered separately. With reference to this state of facts, the Circuit Court instructed the jury (amongst other things), that if, from the evidence, is should appear to them, that the articles purchased by Bates (of which there was a long list, of various kinds) were exposed to public sale in one lot and in bulk, and so purchased, that such sale was, in law, void and illegal, and conveyed no title to the purchaser; and second, that in the public sale of personal property by a sheriff, the presence of the property at the sale, for inspection and delivery to the purchaser is indispensable, and without it, such sale is void and illegal, and conveys no title to the purchaser.

Other instructions were given and refused, which it becomes unnecessary to notice from the view we have taken of the subject. One other point relied on by the appellant's counsel is, that the depositions of Dabney Jones and George Mock, ought to have been suppressed. They were taken (as appeared from the certificate of the officer before whom they were taken) between the hours of eight o'clock in the forenoon, and six o'clock in the afternoon. The notice under which they were taken, fixed the time for taking between the hours of ten o'clock in the forenoon, and six o'clock in the afternoon. The Circuit Court overruled a motion made by the defendant's counsel, to exclude said depositions for want of conformity to the notice in regard to the time of taking, whereupon the defendant tendered his bill...