Pettingill v. Jones
| Decision Date | 09 March 1886 |
| Citation | 21 Mo.App. 210 |
| Parties | H. M. PETTINGILL ET AL., Appellants, v. P. M. JONES, Respondent. |
| Court | Missouri Court of Appeals |
APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.
Reversed and remanded.
WM. A. ALEXANDER, for the appellants.
JAMES R. VAUGHAN, for the respondent.
This is an action of replevin. The defendant is a constable who seized the property in controversy under a writ of attachment against one Hazen. The plaintiffs claim as purchasers from Hazen.
The main controversy upon the trial was, whether the sale by Hazen to the plaintiffs was made in good faith or in fraud of Hazen's creditors, and whether at the date of the institution of the suit Pettingill, one of the plaintiffs, had any interest in the property seized.
Touching the first inquiry there was testimony adduced on both sides, and the ruling of the court in admitting and rejecting evidence, and in charging the jury on that branch of the case, was substantially correct.
On the second branch of the case, the court instructed the jury upon the defendant's request, that “if at the beginning of this suit the plaintiff Pettingill had, and now has no interest in the property sued for, the plaintiffs can not recover.” The giving of this instruction is, among other things, assigned for error, and complained of by motion for new trial.
It will be seen that this instruction is in the nature of a hypothetical demurrer, that one of the plaintiffs is not a necessary (proper) party to a complete determination of the action. The objection was not taken by demurrer or answer, and, therefore, must be considered as waived. Rev. Stat., sects. 3515, 3519.
If the evidence failed to show a right of action in both the plaintiffs, then it would have been a proper case for a demurrer to the evidence. But as long as it tended to show a right of action in either plaintiff the defendant could not demur to the evidence, because the failure of proof affected one of the parties plaintiff only, and the right of recovery in the other plaintiff still remained. Our statute expressly provides, to meet the exigencies of a case like the one supposed by the instruction, that judgment may be given for or against one or more of several plaintiffs. Rev. Stat., sect. 3673.
A case like this must be distinguished from the one arising in Rainey v. Smizer (28 Mo. 311). There it appeared that one of two parties having a joint cause of action, sued alone, and ...
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Crenshaw v. Ullman
...face of the petition. Revised Statutes, 1889, secs. 2043, 2047. It could not be raised by a general demurrer to the evidence. Pettingill v. Jones, 21 Mo.App. 210. But, we do think the objection well taken in any event, because, while it is true that Mrs. Thomas could not recover for the los......
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Hamner v. Edmonds
... ... waived the same, and cannot now raise the question of ... misjoinder. Hornig v. Jones, 269 S.W. 399; ... Waller v. Jones, 262 S.W. 456; Thierry v ... Thierry, 298 Mo. 43; Werheide v. Kelley, 243 ... S.W. 158; Copeland v ... 427; Egan ... v. Woelfel, 18 S.W.2d 51; Crowl v. Am. Linseed ... Co., 255 Mo. 327; Crenshaw v. Ullman, 113 Mo ... 637; Pettingill v. Jones, 21 Mo. 214; Secs. 1226, ... 1230, R. S. 1919. (b) As bearing upon the question of the ... unsound condition of the mind of Bettie ... ...
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Hamner v. Edmonds
...of defect or misjoinder of parties by answer, therefore waived and cannot now assert it. [Secs. 770 and 774, R.S. 1929; Pettingill v. Jones, 21 Mo. App. 210; Crenshaw v. Ullman, 113 Mo. 633, 20 S.W. 1077; Crowl v. Am. Linseed Co., 255 Mo. 305, 327, 164 S.W. 618; Copeland v. Davis, 253 S.W. ......
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The Barber Asphalt Paving Co. v. Young
...pleading or otherwise at the trial. The objection must, therefore, be considered to have been waived. Section 602, R. S. 1899; Pettingill v. Jones, 21 Mo.App. 210; Turner Lord, 92 Mo. 113, 4 S.W. 420. But we think the objection is without merit. The legal title was in the intervener and she......