Robertson v. Johnson

• Decision Date: 08 July 1922
• Docket Number: No. 2946.,2946.
• Citation: 210 Mo. App. 585,243 S.W. 215
• Parties: ROBERTSON v. JOHNSON.
• Court: Missouri Court of Appeals

243 S.W. 215

210 Mo. App. 585

ROBERTSON v. JOHNSON.

No. 2946.

Springfield Court of Appeals. Missouri.

July 8, 1922.

Rehearing Denied August 9, 1922.

Appeal from Circuit Court, Newton County; Chas. L. Benson, Judge.

Action by Riley P. Robertson against Alice Johnson. From an order finding defendant guilty of contempt in not complying with the court's order to produce a diamond, defendant appeals. Reversed.

Byron H. Coon, of Joplin, for appellant. Geo. J. Grayston and T. C. Tadlock, both of Joplin, for respondent.

COX, P. J.

Plaintiff, Robertson, instituted a suit in replevin in Jasper county against Alice Johnson, Peter Murphy, and Byron H. Coon for the recovery of a diamond and ring. It seems that Alice Johnson and Peter Murphy were charged with a criminal offense in connection with this diamond and ring and were tried on that charge at Carthage, in Jasper county, and acquitted. The diamond and ring involved were in the possession of Alice Johnson and were produced at that trial. The replevin suit was instituted immediately thereafter. The proper affidavit and bond were filed authorizing the sheriff to take possession of the property and deliver it to plaintiff. When the writ was served, the sheriff did not get possession of the property, but why he did not does not appear in this record, except in the testimony of Alice Johnson where she says the sheriff did not ask for it when he served the writ upon her. A change of venue was taken and the case sent to Newton county without any further effort by plaintiff to secure possession of the diamond and ring pending the trial. After the case reached Newton county, the plaintiff applied to the court for an order directing defendants, Johnson and Murphy, to produce the diamond in court at the trial to be used as evidence. This was resisted by defendants, and an application for a writ of prohibition was filed in this court asking that the circuit judge be prohibited from enforcing the order to produce the diamond in court. This case was heard in this court, and a decision rendered therein on March 20, 1920, which is reported in 203 Mo. App. 289, 221 S. W. 135. This court by a majority opinion, Judge Bradley dissenting, held that the circuit court had the authority to make and enforce the order requiring the defendants to produce the diamond in court at the trial to be used as evidence in the case. That decision has therefore become the law of this case, and we shall not reopen the question. After the decision in this court in the Prohibition proceeding was rendered, the trial of the replevin suit was continued from time to time until October 22, 1920, on which date, it appearing that the diamond was not present in court, the plaintiff asked that a citation be issued and served on defendants requiring them to show cause why they should not be adjudged guilty of contempt of court in not producing the diamond in conformity to the court's order. This motion was finally heard on December 6, 1920, and by the court taken under advisement until February 28, 1921, at which time the court discharged Murphy, but found Alice Johnson guilty of contempt in not producing the diamond in court and ordered her committed to jail until such time as she should produce it or she should be otherwise discharged by due course of law. From this order said Alice Johnson has appealed.

At the hearing of the citation for contempt Alice Johnson filed a return to the citation in which she alleged that she had lost the diamond on May 14, 1920. She alleged that she had not intentionally put the diamond out of her possession and control, but had tried to keep it safely, and had kept it securely wrapped and tied in a silk glove that she pinned to an undergarment worn by her in order that she might keep it securely in her personal possession; that she had attended a theater on the night of May 11, 1920, and on her return home, and when disrobing to, retire, discovered that the glove with the diamond in it was gone; that she then made diligent search for it, retraced her steps to the theater in search for it, placed an advertisement in the paper, and did all she could in an effort to find it, but had been unable to do so, and for that reason could not produce it in court. She was sworn and testified to the truth of the allegations of her return. She was cross-examined at length, but her testimony sustains the allegations of her return. She testified that she had the diamond, and it was exhibited at the trial of the criminal case against her and Mr. Murphy; that she had always been...