Rowles v. Paulson

• Decision Date: 03 May 1937
• Docket Number: No. 18833.,18833.
• Citation: 105 S.W.2d 31
• Parties: ROWLES v. PAULSON et al.
• Court: Missouri Court of Appeals

105 S.W.2d 31

ROWLES v. PAULSON et al.

No. 18833.

Kansas City Court of Appeals. Missouri.

May 3, 1937.

Appeal from Circuit Court, Cooper County; Nike G. Sevier, Judge.

Replevin action by C. E. Rowles against Lizzie J. Paulson and another, wherein the defendants filed a counterclaim. The action was instituted in the justice of the peace court and appealed to the circuit court, where a trial de novo was had. From a circuit court judgment for the plaintiff, the defendants appeal.

Reversed and remanded.

Pendleton & Martin, of Boonville, for appellants.

Embry & Embry, of California, Mo., for respondent.

SHAIN, Presiding Judge.

This is an action in replevin which originated in the justice of the peace court in Cooper county, Mo.

The plaintiff's petition was duly sworn to and the cause of action was stated as follows: "Plaintiff states that he is lawfully entitled to the possession of a Black Filly colt, aged about one year of the value of Fifty Dollars; that the same is now wrongfully detained by the defendants in the County of Cooper aforesaid; that the same has not been seized under any process, execution or attachment against the property of the plaintiff; that the said colt has been injured by unproper care and feeding, and for the detention of said colt for all injuries thereto, the plaintiff is damaged seventy-five dollars. Plaintiff further states that said plaintiff's right of action accrued within one year next before this date, and said defendants' wrongful detention began September 1, 1934."

Defendants filed answer and counterclaim in words and figures as follows:

"By Way of Counterclaim, set off, and recoupment, and Claim for Damages.

                ___________________________________________
                           Pilot Grove, Mo., June 3, 1935
                C. E. Rowles, Dr. in account with George L
                 Paulson and Lizzie Paulson
                ___________________________________________
                

"June 3, 1935. To account for boarding, feeding and keeping the black mare colt mentioned in plaintiff's statement in replevin, from September 1, 1934, to June 1, 1935, a period of Nine (9) months. That a reasonable monthly charge for said service is $5.50 per month, and that defendants reserve and claim an agistor's lien on said colt as provided in Section 3190 of the Revised Statutes of Missouri of 1929 [Mo. St.Ann. § 3190, p. 5017] and reserve and claim a right of possession of said colt till said lien is released by the payment to defendants by plaintiff of the amount of said account for feeding and keeping said black mare colt the total amount of which

                is: ............ $49.50
                   *                            *
                

"June 3, 1935. To damages arising out of the same transaction, from misrepresentations and warranties made by plaintiff to defendants in the sale by plaintiff to defendants of a span of black mares, one of which said mares was suckling the black mare colt mentioned in plaintiff's petition and statement herein — by reason of which said misrepresentations and warranties on the part of plaintiff, defendants have been damaged in the sum of $125.00

                  "For which they ask judgment
                           "William A. Collins
                            "Attorney for Defendants."
                

The record before us does not disclose the result in the justice court. However, it is shown that an appeal was taken to the circuit court and in the circuit court a trial was had de novo by the court, a jury being waived.

The judgment in the circuit court was for the plaintiff for possession of the property replevied and for one cent damages. From this judgment defendants duly appealed. We will continue to refer to the parties to conform to situation at trial, respondent as plaintiff and appellants as defendants.

Defendants make but one assignment of error, to wit, that the court committed error in striking out defendants' amended counterclaim.

It is shown by the record that defendants filed in the circuit court an amended counterclaim wherein the facts of alleged misrepresentation and warranties alleged to have been made by plaintiff in the transaction are more fully set forth than same are set forth in the counterclaim filed in the justice court.

The plaintiff thereafter filed a motion to strike the defendants' counterclaim assigning reasons as follows:

"This is an action of replevin, and an action in tort and defendants' counterclaim is founded on alleged tort, and such counterclaim cannot therefore be set up and tried in this action, the counterclaim not being connected with plaintiff's action.

"This action originated before a Justice of the Peace, and the counterclaim there filed was an equitable counterclaim in part, and therefore could not be tried before a Justice of the Peace.

"This action having originated before a Justice of the Peace, defendant cannot now, amend, enlarge or change the nature of her counterclaim, by amendments in this court.

"The amended counterclaim, as filed cannot now be heard in this court for the reason that the jurisdiction of this court on appeal from the Justice Court is the same as the jurisdiction of a Justice and the counterclaim involves equitable matters not within the jurisdiction of a justice to hear and determine."

The ruling of the court in striking the amended counterclaim presents the only issue for review in this case.

After the ruling of the court in above matter, the plaintiff was sworn as a witness and testified to facts that, in the absence of other testimony, justified recovery. Defendants are not shown to have participated in...