Smith v. Winston

• Decision Date: 31 January 1847
• Citation: 10 Mo. 299
• Parties: SMITH v. WINSTON.
• Court: Missouri Supreme Court

10 Mo. 299

SMITH

v.WINSTON.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO BUCHANAN CIRCUIT COURT.

JONES & EDWARDS, for Plaintiff. 1st. That Winston having failed to prosecute his suit with effect and without delay, the court or jury ought to have assessed the value of the property taken, and damages for the use of the same. Rev. Stat. Mo. 922, § 8. 2nd. That the judgment in this case ought to have been against Winston and his securities, that he return the property taken or pay the value assessed at the election of Smith, &c. Rev. Stat. Mo. 922, § 9. 3rd. That a judgment, though pronounced by the judge, is the sentence of the law, and if the judge pronounce a wrong judgment, i. e. one not warranted by the law arising upon a certain state of facts judicially made known to the court, either by the admission of parties in their pleading, or found by a jury, it is error. See 3 Blacks. Com. 396. 4th. That there is no such thing in law as a non-suit in an action of replevin, and that if Smith even had consented to the non-suit, it could not affect his rights in this case, and that the statement in the record of the non-suit must be rejected as surplusage. 5th. That the court below erred in overruling the several motions of Smith, and in refusing to assess the value of the property, &c.

WILSON & REES, for Defendant. 1st. That inasmuch as the non-suit was taken without objection, and when the court afterwards was about to set it aside, voluntarily both parties insisted that it should stand. it is to be taken as done by consent of parties. 2nd. The Circuit Court, if it had set aside the non-suit, could not have given judgment for the defendant below on the demurrer as asked in said motion of said plaintiff in error. See Thompson v. Button, 14 Johns. R. 83; Durham v. Wyckoff 3 Wend. 280. Where trespass de bonis asportatis lies, so will replevin 7 Johns. R. 142. See Gibson v. Mozier, 9 Mo. R. 256. 3rd. There is no motion made in the court below in arrest of judgment, without which, errors in the record here cannot be taken advantage of.

NAPTON, J.

Winston filed a declaration in replevin against Smith, the plaintiff in error, to recover possession of a negro woman named Susan, and having made the affidavit required by our statute, and given the requisite bond, was put in possession of the slave. The defendant pleaded not guilty, and specially that he was a constable of Washington township, in Buchanan county, and by virtue of an execution against one Ewell, duly issued, and to him directed, he levied the same upon the said slave, and detained her by virtue of said execution, &c., To this special plea the plaintiff demurred, but the demurrer being overruled, the plaintiff took a non suit, with leave to move to set it aside. The court thereupon entered a judgment, that the defendant go hence without day, and that the plaintiff recover his costs, &c. Afterwards the defendant moved to set aside the non-suit, and enter up judgment on the demurrer, and have the value of the property assessed. The defendant also filed two other motions very much the same in substance, that the court assess the value of the property and the damages for the use of the same, or that the same be assessed by a jury. These motions were all overruled. The defendant took his bill of exceptions and brought the case here by writ of error.

1. The first question presented by the record is the propriety of the special plea, which the Circuit Court held good on demurrer. We think the plea a bad one. The 2nd section of the act regulating the action of Replevin, Rev. Code, 1845, applies only to cases where the plaintiff in replevin is the defendant in the...