Schulenberg v. Boothe

• Decision Date: 31 October 1877
• Citation: 65 Mo. 475
• Parties: SCHULENBERG, APPELLANT v. BOOTHE ET. AL.
• Court: Missouri Supreme Court

65 Mo. 475

SCHULENBERG, APPELLANT

v.BOOTHE ET. AL.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Jackson Circuit Court.--HON. SAMUEL L. SAWYER, Judge.

Tomlinson & Ross for appellant.

I. If the verdict were supported by any testimony whatever the amount is too great. The sheriff levied on the tables to satisfy an execution for $517.41 (judgment and costs) and the verdict should not have been greater than this sum. Dilworth v. McKelvey, 30 Mo. 149; Gillham v. Kerone, 45 Mo. 487.

II. But the verdict of the jury is wholly unsupported by the evidence--is against the testimony of every witness who testified on that point. This court has in many instances reversed and remanded cases on account of the verdict of the jury when it was wholly unsupported by the evidence. Ackley v. Staehlin, 56 Mo. 558; Schmeiding v. Ewing, 57 Mo. 78; Dedo v. White, 50 Mo. 241; State v. Burnside, 37 Mo. 343; Morris v. Barnes, 35 Mo. 412; Heyneman v. Garneau, 33 Mo. 565.

Wm. E. Sheffield, for respondents, cited Williams v. Rorer, 7 Mo. 556.

NORTON, J.

This was an action to recover the possession of four billiard tables, which had been levied upon by the defendant Boothe as sheriff, on an execution which issued against one Seigmunt, in favor of one Cross, for $508.46, from the office of the circuit clerk of Jackson county. Cross being made a party defendant with Boothe, each in separate answers denied that plaintiff was the owner or entitled to the possession of the tables; but that they were the property of Seigmunt, and, as such, subject to seizure and sale upon execution in favor of said Cross, and that they had in virtue thereof, been seized by Boothe as sheriff. Plaintiff by replication denied the allegations of the answer. Upon a trial by jury, the verdict was for defendants, and plaintiff having given bond and taken possession of the property, its value was assessed at $800 and the damage of defendants at $1.00. The court having overruled a motion for new trial, the cause is brought to this court by appeal.

The principal point relied upon by counsel is, that there was no evidence, or no sufficient evidence to support the verdict. It appears from the evidence that in March, 1872, plaintiff sold the tables in question to Seigmunt for about $2,000, one hundred of which was paid at the time, and the remainder was to be paid in various payments, the last payment maturing April 13, 1873. The contract of sale was in writing, and it was expressly stipulated, among other things, that until the purchase price was paid, the title of the property was to be and remain in the plaintiff. Plaintiff further testified that there was due on the notes given for the purchase price of these tables, about the sum of $1,200, and that all the tables he received of Seigmunt were worth between four and five hundred dollars. The evidence of two other witnesses on behalf of plaintiff, was to the same effect. It was further shown by these witnesses that the four tables in controversy, when returned to plaintiff, were worth from $50 to $60 each. If the above had been the only evidence in the case the verdict and judgment would not be allowed to stand. It was, however, shown on defendant's part by the...