Moran v. Plankinton

• Decision Date: 31 October 1876
• Citation: 64 Mo. 337
• Parties: JOHN MORAN, Plaintiff in Error, v. JOHN PLANKINTON, et al., Defendants in Error.
• Court: Missouri Supreme Court

64 Mo. 337

JOHN MORAN, Plaintiff in Error,

v.JOHN PLANKINTON, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Jackson County Circuit Court.

H. B. Johnson, with Tichenor & Warner, for Plaintiff in Error.

Wallace Pratt & Frank B. Huff, for Defendants in Error, cited: Wagner vs. Jacoby, 26 Mo. 532; Flaherty, Adm'r, vs. Taylor, 35 Mo. 447; 15 Johns. N. Y. 229; 16 N. Y. Court of Appeals, 548; 16 Johns. N. Y., 121-136; 12 Wis, 544; 1 Wend., 487; 10 Eng. Com. Law (3 Barn. & Cres.), 235; 8 Wend. 492; 13 Wend. 644; 15 Wend. 557; 2 Cow. & Hill's Notes (Ed. 1839), 842, and cases cited; 15 Johns. N. Y. 432; 16 N. Y. 548; Rice vs. King, 7 Johns. 20; McKnight vs. Dunlap, 4 Barb. (N. Y.), 36.

SHERWOOD, C. J., delivered the opinion of the court.

The plaintiff had seventeen hogs stolen from him; search being made his son discovered thirteen of them in the possession of the defendants, at their packing-house. The whole number, however, had been sold to defendants, who were innocent purchasers for full value. Plaintiffs, on discovering that thirteen of his hogs were in possession of defendants, went to their packing house, found six of his hogs killed, but not cut up, and replevied them with damages for detention.

At the time plaintiff brought replevin, defendants had so cut up and otherwise disposed of the remaining eleven hogs, by packing them with others, that it was alike impossible to distinguish or replevy them.

As to four of the hogs, it does not appear from the agreed statement that plaintiff had any knowledge of their conversion when he brought his first suit. The present one he instituted before a justice of the peace, for the value of the eleven hogs, and was successful; but on appeal to the circuit court the defendants had judgment.

There is not doubt respecting the general correctness of the proposition expressed in the maxim: “ nemo debet bis vexari pro una et eadem causa.”

This rule, however, is not of universal application. The origin and object of the rule were the prevention of the vexations incident to a multiplicity of suits, which the law, equally as much as equity, abhors.

The principle above asserted finds more familiar expression in the statement, that a party shall not split his cause of action.

Now, it is quite obvious, that such prohibition pre-supposes knowledge of the constituent elements of the cause of action sought to be unwarrantably divided. If this be true, and it be true also that the law does not require what is impossible, then it must needs follow, that a party should not be precluded in consequence of a former action, if such action were brought in unavoidable ignorance of the full extent of the wrongs received or injuries done. Any other conclusion would be reached only through sanctioning the rankest injustice.

In Farrington vs. Payne (15 Johns. 432), the question is asked: “Suppose a trespass, or...