Reed v. Wilson

• Decision Date: 31 January 1850
• Citation: 13 Mo. 28
• Court: Missouri Supreme Court
• Parties: REED, GUARDIAN OF TOLSON, v. WILSON & GARNER.

13 Mo. 28

REED, GUARDIAN OF TOLSON,

v.WILSON & GARNER.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM HOWARD CIRCUIT COURT.

CLARK, for Appellant, cited: 1. Rev. Code, title Replevin; Broadwater v. Darne, 10 Mo. R. 277; 1 Chitty's Pl. 82-3, 138, 187. 2. Rev. Code, title Insane Persons, §§ 13, 14, p. 595; Story on Bailments, 109; 19 Wend. 306, 3 Johns. Cases, 13; 3 Watts & Serg. 416; 2 Ark. R. 326. 3. The court erred in assessing the damages--this is like all other cases--the court, we think, has no power to assess the damages against the consent of either party. 9 Mo. R. 163

LEONARD, for Appellees. 1. The admendment of the plea and the refusal of the court to render judgment for want of a plea, are matters within the discretion of the Circuit Court, and there is nothing in the record to show that the decision was improperly exercised, even if these matters are proper subjects for a writ of error. 2. By the express terms of the statute, if the plaintiff fail to prosecute his suit with effect and without delay, the court or jury may assess the value of the property and the damages for the use of it. Rev. Stat. 145, Replevin, § 8. 3. The action in b half of a lunatic must be in the name of the lunatic and not in the name of the guardian or committee. Coke's Litt. 135-6; 6 Bac. Abr. Idiots and Lunatics; G. Shelford on Lunatics, 395; Thorn v. Corrard, 2 Siderfin, 124; Drury v Fitch, Hutton's R. 16; Fulcher v. Griffith, Popham's R. 140; Knipe v. Palmer, 2 Wilson, 130; Cox v. Dawson, Noyes R. 27; Lane v. Shemerhorn, 1 Hill (N. Y.) 97; Long v. Whidden, 2 N. Hamp. R. 436; McKnight v. Aiken, 3 Hill (S. C ) 337; Crane v. Anderson, 3 Dana R. 119, If the present were even the case of the guardianship of a minor, this action could not be sustained in the name of the guardian. Dearman v. Dearman, 5 Ala. R. 202; Sutherland v. Goff, 5 Porter's R. 508, Fuqua v. Hunt, 1 Ala. R. 197; Barnett v. Common wealth, 4 J. J. Marsh. 389; Barnett v. Commonwealth, 5 J. J. Marsh. 286; Longstreet v. Tilton, 1 Cox (N. J.) R. 38.

BIRCH, J.

Reed, as guardian of Tolson, a lunatic, brought an action of replevin against Wilson & Garner for the detention of slaves and other personal property. At the return term the defendants pleaded the general issue, entitling it “at the suit of Tolson, by her guardian,” upon which the plaintiff took issue. At the trial term, the defendants had leave to amend their plea, by entitling “at the suit of Reed, guardian of P. Tolson,” corresponding with the declaration. The plaintiff having ineffectually objected to the amendment, thereupon moved for judgment against the defendants for want of plea, which we overruled and the parties went to trial. It was properly proven that Miss Tolson had been declared a lunatic, that Reed was her guardian and had demanded the property in suit which was refused by the defendants. It is deemed unnecessary further to recapitulate the testimony, it being apparent from the record, that the issue in the court below...