Morrison v. Yancey

• Decision Date: 21 December 1886
• Parties: J. N. MORRISON, Respondent, v. C. D. YANCEY ET AL., Appellants.
• Court: Missouri Court of Appeals

23 Mo.App. 670

J. N. MORRISON, Respondent,

v.C. D. YANCEY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded.

TORREY & GIVAN, for the appellants: The defendant in a replevin suit, who fails to have his damages assessed in that suit, can not maintain an action against the plaintiff and his sureties on the replevin bond for damages. White v. Van Houten, 51 Mo. 577; Hohenthals v. Watson, 28 Mo. 360; Farley v. Bryant, 34 Mo. 512; Boutell v. Warne, 62 Mo. 350; Dougherty v. Cooper, 77 Mo. 535. If there was sufficient evidence to justify the court in submitting the cause to the jury it should have been directed as to the measure of damages. Shenuit v. Brueggestradt, 8 Mo. App. 46; Pope v. Jenkins, 30 Mo. 528; Chapman v. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 96.

FRANK M. ESTES, for the respondent: The court, having failed to assess the damages when suit in replevin was dismissed, or to render judgment for the return of the property, the defendant in that action, and the plaintiff in this, is entitled to judgment on the bond for all damages sustained. Elliott v. Black, 45 Mo. 372; Berghoff v. Heckwolf, 26 Mo. 512; Hansard v. Reed, 29 Mo. 472; The State ex rel. v. Six, 80 Mo. 64; Collins v. Hough, 26 Mo. 149. In a suit on a replevin bond, the obligors can not avail themselves of the failure of the court to render the alternative judgment, for the return of the property or its value. The State ex rel. v. Dunn, 60 Mo. 64; Wells on Replevin (1880), sect. 423; Robbins v. Foster, 20 Mo. App. 519.

ROMBAUER, J., delivered the opinion of the court.

The facts of the case, as claimed by the plaintiff, are briefly stated as follows: In 1878 the defendant, Yancey, brought an action of replevin in the Wayne county circuit court, to recover a locomotive engine, and executed a bond in the penal sum of five hundred dollars with his present co-defendant as surety.

The suit was dismissed in 1878 by the court, without any trial on the merits, for failure on the part of Yancey to file an additional replevin bond, but no order was made for the return of the property, nor was any inquiry of damages had, the cause being continued for that purpose to a succeeding term. At a succeeding term of the Wayne county circuit court, the venue of the cause was changed to Iron County, upon the application of Yancey, and thereafter upon a motion made by the same party, in the Iron county circuit court, the cause was stricken from the docket of that court, on the ground that the change of its venue was improvidently and illegally made.

The present action is upon the replevin bond against the defendant, Yancey, and his surety, and the breach assigned is that he failed to prosecute the action with effect and without delay.

In the trial court the plaintiff had judgment for five hundred dollars damages.

The first error assigned by the defendants appealing is that the court refused to instruct the jury, as requested by the defendants, that a judgment for the return of the property and an assessment of damages by the Wayne county circuit court was a condition precedent to the maintenance of this action.

This objection goes to the foundation of the entire proceeding. It is based upon sections from 3852 to 3855 of the Revised Statutes, and finds its main support in the case of White v. Van Houten (51 Mo. 577), where it was distinctly held that the damages are incidental to the main action, and where a replevin suit is prosecuted to judgment, all questions of value, damages, and costs must be determined in the same proceeding, and where that is not done an action on the bond can not be sustained.

It was said in that case that the case of Berghoff v. Heckwolf (26 Mo. 511), was an action instituted under the code of 1849, and the replevin act of 1845, but the case was distinguished from the case then at bar, and not distinctly overruled. On the other hand, in Elliott v. Black (45 Mo. 372), decided under the same statute as White v. Van Houten, the case of Berghoff v. Heckwolf is quoted with approval, the court stating that, where the complainant in a replevin suit fails to prosecute his suit to a successful issue, that failure constitutes a breach of the conditions of his return bond, and warrants a suit upon it, although there may have been no judgment in the replevin suit either for damages or a return of the property.

That the opinions filed in Elliott v. Black and White v. Van Houten, are irreconcilable in some of their details is apparent, but while it is the duty of this court to follow the last controlling decision of the supreme court, a proper respect for that court demands that we should endeavor to reconcile the apparent conflict, if such can be done. It can be done in this instance upon the facts distinguishing the two cases. In Berghoff v. Heckwolf, as well as in Elliott v. Black, the replevin suit was not formally tried, in one the plaintiff took a voluntary non-suit and in the other his suit was dismissed by the court, whereas in White v. Van Houten there was a trial by jury and final judgment determining the rights of the parties.

Applying the law as deducible from all these cases to the facts of the case at bar it results that the plaintiff was not debarred of his action on the bond by the fact that he failed to have his damages assessed in the replevin suit. That suit was dismissed for the plaintiff's failure to file a sufficient bond, and being continued for an assessment of damages, was illegally removed upon the plaintiff's motion from the Wayne to the Iron circuit, and in the latter circuit upon the plaintiff's motion, stricken from the docket because illegally removed. It was the plaintiff, who, by his own action, prevented an assessment of damages in the replevin suit, and he is estopped from asserting that the non-assessment of damages in that suit is a bar to the present action.

It results that the first error assigned by the appellants is not well assigned.

The next complaint the appellants make is that the court admitted illegal testimony against their objection. This relates to the admission in evidence of...