Martin v. Block

• Citation: 24 Mo.App. 60
• Parties: NANNIE MARTIN, Respondent, v. H. E. BLOCK ET AL., Appellants.
• Decision Date: 04 January 1887
• Court: Court of Appeal of Missouri (US)

24 Mo.App. 60

NANNIE MARTIN, Respondent,

v.H. E. BLOCK ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 4, 1887.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

L. D. SEWARD, for the appellants.

T. B. CHILDRESS, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

This is an action of replevin in which the plaintiff recovered judgment in the trial court. The defendants appealing assign for errors:

1. That the petition fails to state a cause of action.

The petition is in the following words:

“Plaintiff states that she is the owner of and entitled to the possession of the following personal property; viz: Twelve barrels of sour mash whiskey, containing about four hundred and forty gallons, of the value of about one thousand dollars, which the defendant wrongfully detains from the plaintiff. She, therefore, asks judgment for the recovery of said property, and two hundred dollars damages for the detention thereof, and her costs of suit.”

This petition is sufficient. The gist of this action is the defendant's wrongful detention of the property from the plaintiff, which is sufficiently stated. See Staley House Furnishing Co. v. Wallace, 21 Mo. App. 131.

2. That the court admitted illegal evidence against the defendants' objection.

This assignment rests upon the following facts:

Brunazzi, a witness called for the defendants, testified as to the sale of the property in question, and that he knew the general reputation of the plaintiff for truth and veracity, and that it was bad; and then, on cross-examination, the following questions were asked by the plaintiff's counsel:

Q. “Did you inquire after the character of Charles Martin?” A. “Yes, sir.”

Q. “What did you find out about his character?” A. “Well, he is not very good.”

Q. “‘He is not very good?” A. “No, sir.”

The defendant moved the court to strike out this testimony on the ground that it was not the proper method of impeaching a witness, and the court refused to strike it out. We have recently held that where to a question put to a witness he gives an irresponsive answer containing incompetent testimony, it is the duty of the court to rule it out on timely objection being made. Burns v. Railroad, 24 Mo.App. 10. In the present instance the objection, if tenable at all, went to the question, and counsel, by not objecting to, it must be deemed to have waived the objection. Moreover the character of the witness, Martin, had been sufficiently impeached aliunde and the error, if any, related to mere cumulative testimony, and would in no event be deemed sufficiently prejudicial to warrant a reversal of the judgment.

3. That the defendants' demurrer to the evidence should have been sustained, because the plaintiff failed to prove a demand for the property prior to the institution of the suit.

This error is not well assigned, as no demand is necessary under the statute. Rev. Stat., sect. 1018. The failure of a demand not being set up in the answer, accompanied with a tender of the property, such failure could not affect even the question of costs.

4. That the court committed error in excluding certain records tending to show that the defendant, Vette, was security for the witness, Martin, on some appeal bonds.

As this testimony did not in any way tend to show any right of possession to the property in controversy in Vette, as against the plaintiff, and as his right of possession as against any other party was wholly immaterial, it is not conceivable on what theory this ruling is assigned as error. The authorities cited by the appellants, in support of their position, have not the most remote application to the case.

5. That the court refused to instruct the jury, upon the defendants' request, to the following effect, namely:

“If the jury believe, and find, from the evidence, that the plaintiff was never married to Charles Martin, and is not, and never was his wife, then she can not have a separate estate within the meaning of the law.”

The court refused this instruction, but gave one of its own motion, the giving of which is also assigned for error, and which is as follows:

“If the jury believe, and find, from the evidence, that the plaintiff was never married to Charles Martin, and is not, and never was his...