Morris v. Dowell

• Decision Date: 24 July 1918
• Docket Number: No. 14529.,14529.
• Citation: 205 S.W. 229
• Parties: MORRIS v. DOWELL.
• Court: Missouri Court of Appeals

205 S.W. 229

MORRIS v. DOWELL.

No. 14529.

St. Louis Court of Appeals. Missouri.

July 24, 1918.

Appeal from Circuit Court, Montgomery County; James D. Barnett, Judge.

"Not to be officially published."

Action by J. M. Morris against J. W. Dowell. Judgment for plaintiff, and defendant appeals. Affirmed.

David H. Robertson and Fry & Rodgers, all of Mexico, Mo., and H. W. Johnson, of Montgomery City, for appellant. Nowlin & Hughes and E. Rosenberger & Son, all of Montgomery City, for respondent.

REYNOLDS, P. J.

On August 25th, 1913, plaintiff filed his petition with the clerk of the circuit court of Montgomery County, charging that defendant, on August 23, 1913, without just cause or provocation, wilfully, wrongfully and unlawfully assaulted, beat and wounded him, to his actual damage in the sum of $2,000, a like sum also being claimed as exemplary damages. Summons was issued and placed in the hands of the sheriff of that county on August 25th, 1913, who returned it as having been served in person on defendant in that county on September 5th.

On the same day upon which the above petition was filed, that is, on August 25th, 1913 plaintiff made complaint that on that date and at and in the township of Upper Loutre, in Montgomery County, defendant Dowell unlawfully and wilfully assaulted, struck and bruised him by striking, kicking and beating him. This was sworn to by plaintiff before S. S. Nowlin, a Notary Public of the county. On this complaint, and on the same date, the Prosecuting Attorney of Montgomery County, through S. S. Nowlin, his deputy, as it appears, under his oath of office, filed an information before the justice of the peace of that township (the office of the justice being at Wellsville in the county), the information following the averments of the complaint of plaintiff Morris. On that same date the justice issued a warrant directed to the sheriff or any constable of the county, commanding him to take defendant Dowell, if found in the county, and safely keep him, having his body before the justice forthwith, he to answer the complaint and further to be dealt with according to law.

The defendant Dowell at all the times mentioned was a resident of Audrain County, residing about one and a half miles from Benton City, in that county, and had been such resident for a number of years and was well known to the sheriff of Montgomery County as so residing.

With the summons in the civil case, as also the state warrant in the criminal case in his hands, the sheriff of Montgomery County, on September 4th, 1913, called up defendant Dowell over the telephone, Dowell then being at his home in Audrain County, as we understand. In that conversation, according to the testimony of the sheriff, he told Dowell that he had a warrant for him to appear before the justice of the peace at Wellsville to answer this complaint of Morris for an assault committed upon him and explaining it to Dowell, asked him if he would save him the trouble of coming after him and arresting him and if he would meet him at Wellsville on the 5th of September for that purpose. Dowell told him he would. On the morning of the 5th, the sheriff heard that defendant was in Wellsville and be went up there to serve the summons in the civil case on him. When he got there he found that defendant had appeared before the justice of the peace that morning, had pleaded guilty and been fined, and had paid his file and the costs. He found defendant getting on the same train by which he (the sheriff) had reached Wellsville, defendant about to go to his home in Audrain County, and then and there served him with the writ in the civil suit. It appears that the sheriff made return to the state warrant, that he had executed it, in Montgomery County, Missouri, on the 5th of September, 1913, "by arresting the within named J. W. Dowell and having his body before the within named justice of the peace * * * on the fifth day of September, 1913." The sheriff testified that he did not tell defendant over the telephone that he had another paper to serve on him; had only referred to the state warrant when he spoke to him; the warrant was all that he spoke to him about.

Defendant, examined in his own behalf, testified that he lived in Audrain County at Benton City and had lived there continuously since 1894, except in an interval of four years when he was absent; that he came into Wellsville on September 5th in answer to a telephone message on the day before from the sheriff, who told him he had a warrant for him and would like to meet him at Wellsville the next day in the forenoon, and as defendant thought that he knew what it was for he told him he would meet him there the next morning. He went to Wellsville on the accommodation, reaching there between 7 and 8 o'clock on the morning of the 5th. There was a local freight train going through there in the morning, but defendant had not finished the matter before the justice of the peace in time to catch it; was served with summons in this, the civil case; had no notice from the sheriff, prior to being served on the 5th, that the sheriff had the summons in the civil case and the only thing he responded to in going to Wellsville was the warrant; had no other business at Wellsville except to attend to that.

On cross-examination defendant testified that he had gone to Wellsville voluntarily in answer to the request of the sheriff that he meet him there the next forenoon. That September 5th, was the first time defendant had ever been in the office of the justice, going to that office after his attorney had found out what justice had issued the warrant; went with his attorney to the office of the justice. Asked if it was not a fact that he had not been arrested at that time, the witness stated that he considered that he was, although the only service of the warrant he had had was over the telephone; had entered a plea of guilty before the justice and paid the fine; was standing on the platform ready to go home on the train when he first saw the sheriff.

It does not appear that either the Prosecuting Attorney, nor his assistant, nor the complainant appeared that day before the justice at the...