Matheny v. Johnson

• Decision Date: 31 January 1845
• Citation: 9 Mo. 232
• Parties: MATHENY v. JOHNSON.
• Court: Missouri Supreme Court

9 Mo. 232

MATHENY

v.JOHNSON.

Supreme Court of Missouri.

January Term, 1845.

ERROR TO PLATTE CIRCUIT COURT.

JONES, for Plaintiff. The plaintiff brings this cause here by writ of error, and to reverse the judgment of the court below, relies on the following points: 1. That in trespasses all are principals; and those who direct a trespass, or assent to a trespass for their benefit after it is done, are equally liable with those who actually commit it. 7 Mo. R. 175. The evidence, therefore, that the defendants indemnified the constable, and compelled him to sell said property, after a trial of the right thereof between them and plaintiff, was improperly excluded by the court, because the evidence went to show a conversion of the property; and that defendants did not only consent to the trespass, but were in fact the principal actors. 2. That the court erred in giving the first instruction prayed by defendants, because it referred to the jury, for their determination, a question of law. 6 Mo. R. 267. 3. That the wrongful taking, or illegal using, or misusing the property, would render defendants liable in this form of action. 1 Chitty's Pl. 154. The court erred, therefore, in giving the third instruction on the part of defendants. 4. That if the plaintiff was the owner of the property, the sale thereof by the constable on execution against Henry Matheny, in favor of defendants, conveyed no title to defendants, even though they had no notice of the plaintiff's rights. Wright's Ohio R. 738. The fourth instruction on the part of the defendants, was therefore improperly given. 5. That if the defendants wished to avoid the conveyance of said property to plaintiff as judgment creditors of Henry Matheny, on the ground of fraud, then they ought to have produced their judgment, and having failed to produce it, they did not show themselves in a situation to defeat the sale and conveyance of said property to plaintiff. 7 Mo. R. 128. The verdict is, therefore, contrary to the law and evidence. 6. That the court erred in sustaining the demurrer to the second and third counts of the declaration. 1 Chitty's Pl. 136, side paging.

LEONARD & BAY, for Defendants. 1. The demurrer to the second and third counts in the declaration was properly sustained, because: First. If those counts are in trespass, there is a misjoinder of actions. Cooper v. Bissell, 16 Johns. R. 146; 1 Chitty Pl. 231, 236; Keay v. Goodwin, 16 Mass. 1; Fairfield v. Burt, 11 Pick. 244. Second. If the counts should be considered in case, they are bad, because the injury complained of is direct and not consequential. Percival v. Hickery, 18 Johns. R. 257; Wilson v. Smith et al. 10 Wend. 324; 1 Chitty on Pl. 145; Leame v. Bray, 3 East, 593. Third. The execution referred to in those counts, was a lien upon the property levied upon from the time it was placed in the officer's hands. Fourth. These counts are uncertain, confused, and mingle together various and irrelevant matters. 2. The proceedings before the constable on the trial of the right of property, was properly excluded, because the verdict of the jury in such trials, if against the claimant, merely justifies the officer in selling the property, and does not determine the title, or ownership of the property. Justices' Courts, Rev. Stat. 1835, p. 367, §§ 14, 15, 16. 3. No exceptions were taken to any of the instructions, and the plaintiff cannot therefore complain of the action of the Circuit Court in relation to them. 4. The verdict was sustained by the evidence.

NAPTON, J.

This was a special action on the case brought by Matheny against the defendants in error, to recover damages for the alleged conversion of certain property described in the declaration. The first count of the declaration is in trover, for the conversion of three yoke of steers and a wagon. Upon this count issue was taken and the trial had, in which the defendants obtained a verdict. The second and third counts of the plaintiff's declaration were demurred to, and the demurrer sustained.

Upon the trial, the plaintiff gave evidence, the object of which was to show, that the property alleged to have been converted by the defendants to their use, belonged to him. The property had been levied on as the property of one Henry Matheny (the plaintiff's brother), and had been sold under execution against said Henry, and the defendants were the purchasers at that sale, and the plaintiffs in the execution. The plaintiff offered to prove that a trial of the right of property was had between the said plaintiff and defendants, before the constable who made the levy, and that the jury returned a verdict in favor of the plaintiff, and that the defendants indemnified the constable, and compelled him to sell said property. This testimony the court rejected, and exceptions were taken. The defendants introduced evidence conducing to show that the property alleged to have been taken was the property of Henry Matheny, the defendant in this execution.

The court instructed the jury: 1. That if they believe the defendants came into possession of the oxen and wagon, legally under execution, they must find for the defendants. 2. If they believe that the oxen and wagon were the proceeds of H. Matheny's claim, and managed in Daniel Matheny's hands to avoid the demands of Henry's creditors, they would find for defendants. 3. Unless it was proved that defendants converted the oxen or wagon to their use by using them, or that a demand was made of them, they must find for defendants. 4. That if defendants bought under execution, they are entitled to a verdict, unless it is proved that they knew at the time of the sale, that the constable had no authority to sell. 5. That if they believed that plaintiff came into possession of the property fraudulently, &c., they must find for defendants...