Mooney v. Kennett

Decision Date31 March 1854
Citation19 Mo. 551
PartiesMOONEY, Respondent, v. KENNETT, Appellant.
CourtMissouri Supreme Court

1. Under the code, where several causes of action are united, each one must be separately stated. (Childs v. Bank of Mo., 17 Mo. 213, affirmed.)

2. Where several causes of action are joined in one petition, there should be a separate assessment of damages or verdict in each cause. A general verdict for the plaintiff, it seems, will not stand, if one of the causes of action as stated, is insufficient to support a judgment.

3. Where several causes of action are blended in violation of the rules of pleading, the proper way of correcting the irregularity would seem to be by motion to compel an election.

4. An erroneous instruction, as to damages for an assault and battery.

5. In an action for a wrongful prosecution, a petition which omits to state that the prosecution was malicious, and that the plaintiff was acquitted, is insufficient.

6. Courts do not take judicial notice of city ordinances. If a party relies on an ordinance, he should set it out in his pleading.

Appeal from St. Louis Law Commissioner's Court.

The petition stated that the defendant assaulted and laid violent hands upon the plaintiff, and “wrongfully, illegally and unjustly caused him to be arrested by a police officer of the city of St. Louis, under a pretended charge of having violated a city ordinance,” whereby he was compelled to give bail for his appearance or be imprisoned in the calaboose; and that the defendant, “wrongfully, injuriously and oppressively, illegally and unjustly caused two separate charges to be made and prosecuted against the plaintiff for alleged violations of city ordinances,” &c. The plaintiff claimed damages to the amount of one hundred dollars. No malice was alleged, nor was it alleged that the plaintiff was acquitted of the charges.

The defendant answered, denying the allegations of the petition. He stated that, at the time of the injuries complained of, he was mayor of the city of St. Louis, and as such, chief of its police, and that he found the plaintiff in what he then believed and still believes to be a violation of a city ordinance, and remonstrated with him, whereupon the plaintiff shook his fist at him and threatened to knock him down; that he afterwards laid the matter before the captain of the city guard, to take such steps as might secure an observance of the city ordinances. He denied that he was actuated by any malice towards the plaintiff, or by any other motive than a desire faithfully to discharge his official duties.

At the trial, there was evidence tending to show that the plaintiff was driver of an express wagon, which he left standing in a street, in such manner as to obstruct a crossing, and that the defendant came to him in a store, where he was delivering a parcel, and requested him to remove his wagon. Plaintiff replied that he would in a moment. Defendant told him to do it immediately, and laid his hands upon his coat collar. After some words, plaintiff drove off and was afterwards arrested.

The defendant offered to read in evidence a city ordinance, prohibiting the obstruction of streets by vehicles, under a penalty; also an ordinance imposing a penalty for resisting officers in the discharge of their official duties. The court excluded these ordinances, on the ground that they were private statutes, and had not been properly pleaded or refered to as such.

Among other instructions, one was given which is set out in the opinion of the court.

There was a general verdict for the plaintiff for the sum of fifty dollars, and the defendant appealed.

Glover & Richardson and C. G. Mauro, for appallant.

1. The petition fails to state facts necessary to constitute a cause of

action for malicious prosecution. 2. The court erred in refusing to permit the defendant to read in evidence the city ordinances. The 13th section of the 7th article of the code does not require a party to notice, in his pleading, a private statute intended to be used merely as evidence. Sexton v. Monks, 16 Mo. 156.

A. M. Gardiner, for respondent.

SCOTT, Judge, delivered the opinion of the court.

1. It would seem from the petition, that this is a suit for a wrongful arrest and prosecution and an assault and battery. There are two causes of action joined, or rather mingled together, in violation of the rules of pleading, as determined by this court, in the case of Childs v. The Bank of Mo., 17 Mo. 213, and of the forms of pleading, as prescribed in the precedents appended to the present practice act. Those precedents show that, while many causes of action may be joined in one petition yet each is to be set out separately and apart from the others, with its appropriate prayer for relief--a course indispensably necessary, it would seem, to avoid inextricable confusion. No effort was made by the defendant to relieve the pleadings of this embarrassment, but the parties went to trial, trying both causes of action at one and the same time, as appears by the record, and taking but a single assessment of damages. If the parties will not properly prepare their pleadings in the courts in which their causes are first tried, they cannot expect a reformation of them in this court. Its powers are not competent to such an undertaking. No such authority is entrusted to it. It must take the record as it is, and affirm or reverse the judgment, as is warranted by the principles of...

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128 cases
  • Kansas City v. Halvorson, 38611.
    • United States
    • United States State Supreme Court of Missouri
    • 6 d1 Dezembro d1 1943
    ...(2d) 117. (2) The amended petition fails to state facts sufficient to constitute a cause of action. Childs v. Bank, 17 Mo. 213; Mooney v. Kennett, 19 Mo. 551; Boyce v. Christy, 47 Mo. 70; McHoney v. Ins. Co., 44 Mo. App. 426; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; Koch v. State Highway......
  • Jackson v. Kansas City, Fort Scott and Memphis Railroad Company
    • United States
    • United States State Supreme Court of Missouri
    • 30 d6 Junho d6 1900
    ...... alleged ordinance was properly passed, nor that it was in. force, both of which were essential. Cox v. St. Louis, 11 Mo. 431; Mooney v. Kennett, 19 Mo. 551; State v. Sherman, 42 Mo. 214. . .          A. H. Livingston for respondent. . .          (1). ......
  • Kansas City v. Halvorson
    • United States
    • United States State Supreme Court of Missouri
    • 6 d1 Dezembro d1 1943
    ......(2) The amended petition fails to. state facts sufficient to constitute a cause of action. Childs v. Bank, 17 Mo. 213; Mooney v. Kennett, 19 Mo. 551; Boyce v. Christy, 47 Mo. 70; McHoney v. Ins. Co., 44 Mo.App. 426; Flowers. v. Smith, 214 Mo. 98, 112 S.W. 499; Koch v. ......
  • Murphy v. Wabash Railroad Company
    • United States
    • United States State Supreme Court of Missouri
    • 13 d5 Maio d5 1910
    ...... this court, when an objection to its breach has been properly. saved in the record, as appears in this case. [ Mooney... this court, when an objection to its breach has been properly. saved in the record, as appears in this case. [ Mooney v. Kennett......
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