Mooney v. Kennett

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSCOTT
Citation19 Mo. 551
Decision Date31 March 1854
PartiesMOONEY, Respondent, v. KENNETT, Appellant.

19 Mo. 551

MOONEY, Respondent,
v.
KENNETT, Appellant.

Supreme Court of Missouri.

March Term, 1854.


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

[19 Mo. 552]

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...

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36 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 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. State Highway Comm., 47......
  • Shohoney v. Quincy, O. & K. C. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 27, 1909
    ...verdict comes in afterwards for plaintiff, the defendant ultimately suffers no wrong, because a motion in arrest lies. Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576, Christal v. Craig, 80 Mo., loc. cit. 371. Take the case of a motion to make more specific and certain. If it be inadvertentl......
  • Erdbruegger v. Meier
    • United States
    • Court of Appeal of Missouri (US)
    • November 6, 1883
    ...has been made in the inferior court to arrest the judgment, and overruled.”-- Finney v. The State, etc., 9 Mo. 636; Mooney v. Kennett, 19 Mo. 551; Davidson v. Peck, 4 Mo. 446; Pitts v. Turgate, 41 Mo. 406; St. Louis v. Allen, 53 Mo. 49. BAKEWELL, J., delivered the opinion of the court. This......
  • Southern Illinois & M. Bridge Co. v. Stone
    • United States
    • United States State Supreme Court of Missouri
    • March 4, 1903
    ...This has been the rule of decision since the first volume of our reported decisions. Ober v. Pratte (1836) 1 Mo. 80; Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576; Morrissey v. Wiggins Ferry Co., 47 Mo. 521; Flato v. Mulhall, 72 Mo. 522. We must decline, therefore, to consider and construe......
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54 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 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. State Highway Comm., 47......
  • Shohoney v. Quincy, O. & K. C. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • November 27, 1909
    ...verdict comes in afterwards for plaintiff, the defendant ultimately suffers no wrong, because a motion in arrest lies. Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576, Christal v. Craig, 80 Mo., loc. cit. 371. Take the case of a motion to make more specific and certain. If it be inadvertentl......
  • City of St. Charles v. Stookey, 2,508.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 11, 1907
    ...an express and the other upon an implied contract, and the verdict fails to show upon which cause of action it rests (Mooney v. Kennett, 19 Mo. 551, 61 Am.Dec. 576; Pitts v. Fugate, 41 Mo. 405; State v. Dulle, 45 Mo. 269; Bigelow v. Railway Co., 48 Mo. 510; Cole v. Armour, 154 Mo. 333, 55 S......
  • Stephens v. Hannibal & St. Joseph R.R. Co.
    • United States
    • Missouri Supreme Court
    • April 30, 1885
    ...the general finding on the counts are erroneous, and the motion in arrest should have been sustained for that reason. Mooney v. Kennett, 19 Mo. 551; Clark's Adm'r v. H. & St. Jo. Ry. Co., 36 Mo. 215; Pitts v. Fugate, 41 Mo. 405; State ex rel. Collins v. Dulle et al., 45 Mo. 269. The two cou......
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