Long v. Cockrell

• Decision Date: 31 January 1874
• Citation: 55 Mo. 93
• Parties: AMELIA E. LONG, Appellant, v. LOUISA A. COCKRELL, ADM'R OF THE ESTATE OF W. B. COCKRELL dec'd, Respondent.
• Court: Missouri Supreme Court

55 Mo. 93

AMELIA E. LONG, Appellant,

v.LOUISA A. COCKRELL, ADM'R OF THE ESTATE OF W. B. COCKRELL dec'd, Respondent.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Jackson Circuit Court.

Franklin & Napton, for Appellant.

I. This court held in Dilworth vs. McKelvy, 30 Mo. 149, that the statute did not contemplate the assessment of the entire value of the property, except where the defendant is the absolute owner. Where as in the case at bar, the defendant has only a special interest in the property, the jury or court should assess the value of the interest. (See also Gilham vs. Kerone, 45 Mo., 489.)

The facts disclosed by the pleadings warrant a reversal of this cause. For the defendant has a judgment against the plaintiff, for more than double the amount claimed. The verdict should have been for the amount of the constable's lien, that is, the amount of the judgment and executions, and not for the whole value of the property.

Lay & Belch, for Respondent.

I. The judgment was properly rendered for the return of the property or its full value, against the plaintiff and sureties on the bond. (Fallon vs. Manning, 35 Mo., 271; Frei vs. Vogel, 40 Mo., 149.) The cases of Dilworth vs. McKelvy, 30 Mo., 149, and Gillham vs. Kerone, 45 Mo., 487, are not in conflict with this view, but rather support it. The answer alleges ownership in a party, other than the plaintiff. This was one of the issues presented by the pleadings. Evidence may have been offered, and no doubt was, upon this issue, and tending to show that plaintiff is a stranger to the title. None of the evidence or instructions are preserved. This question may have been submitted to the jury by the instructions of the court, and it is to be presumed in the absence of anything to the contrary that it was.

VORIES, Judge, delivered the opinion of the court.

This action was brought by the plaintiff, in the Jackson Circuit Court in October, 1871, against the intestate of the defendant, to recover the possession of certain personal property in the petition described, and which was charged to be of the value of three hundred dollars. The petition was in the usual form. The defendant in her answer, first denied the plaintiff's right to the possession of the property, and that it was wrongfully detained from her, and then, as an additional defense, charged that plaintiff was a married woman, and was then the wife of one Southey N. Long; that defendant's intestate was a duly elected and qualified constable of Kaw township in Jackson county, on the 4th day of January, 1870; that an attachment, and several executions, all of which were particularly described, and were for the aggregate amount of $139, were placed in his hands as such constable, to be by him duly levied and executed as the law directs, and all of which were against the property of the said Southey N. Long; that by virtue of said attachment and executions the said intestate levied upon and seized said property in the petition named, as the property of said Southey N. Long, by virtue of which he held the same at the time the same was replevied out of, and taken from, his possession by virtue of the orders and process issued in this suit. It is further averred that the property was at the time legally subject to be levied on and attached as the property of said Southey N. Long.

The plaintiff filed a replication to this answer, in which she did not deny that she was a married woman, or that defendant's intestate was constable as charged, but did deny all of the other material affirmative allegations in the answer.

A trial was afterwards had before a jury, a verdict was rendered in favor of the defendant, and the value of the property assessed at three hundred dollars, and damages found in the sum of twenty five dollars. A motion was filed for a new trial which was overruled by the court, and judgment rendered against the plaintiff and her sureties on her replevin bond for the return of the property or for the payment of the sum of three hundred dollars and damages as found by the jury.

The plaintiff appealed to this...