Spitler v. Young

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: Spitler v. Young, 63 Mo. 42 (Mo. 1876)
• Decision Date: 31 May 1876
• Parties: SAMUEL SPITLER, Respondent, v. RANSOM V. YOUNG, Appellant.

63 Mo. 42

SAMUEL SPITLER, Respondent,

v.RANSOM V. YOUNG, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Grundy Circuit Court.

Collier & Peery, for Appellant.

Daniel Metcalf, for Respondent, cited: Dil. Corp., §§ 279, 283, 285, and cas. cited, §§ 308-2; Rosebaugh vs. Saffin, 10 Ohio, 32-37, and authorities cited; Darst vs. The People, 51 Ill., 286.WAGNER, Judge, delivered the opinion of the court.

This was an action under the statute to recover the possession of hogs claimed to be the property of the plaintiff. The defendant justified the seizure and detention of the hogs, as marshal of the town of Trenton, under an ordinance of that town. It appears that the plaintiff was a non-resident of the town, and that his hogs escaped into the town where they were taken up.

By the 4th subdivision of the first section of the act to amend the charter of the town of Trenton (Sess. Acts 1874, p. 408), power is given to the incorporation “to prevent or abate all nuisances on public or private property.”

Under this authority the town council passed an ordinance which the defendant pleads in justification. The first section declares all hogs running at large within the corporate limits to be nuisances, and the owner of each and every such animal is made liable to pay to the town the sum of one dollar for every twenty-four hours the same shall run at large, and also a fee to the marshal for taking them up. By the second section the marshal is required to take up and confine in a secure pen or place provided for that purpose, every such animal found running at large, and retain the same until redeemed or sold. Section three provides that if the owner of any such animal shall before the same is sold, pay the marshal the penalty provided for taking it up, then it shall be restored to him; and if he does not redeem before sale by payment to the marshal of the penalty, then the officer shall proceed to expose and sell the same at public auction to the highest bidder. Section four authorizes the marshal to pay the money arising from the sale to the owner on his demand, after deducting penalty and costs. And section five requires that before a sale is made, an advertisement giving a description of the property to be sold, and the place where sold, shall be posted up for forty-eight hours.

The case was tried by the court, sitting as a jury, and the plaintiff gave evidence showing that he resided out of town and kept his hogs up in a pen; the water washed his fence away and they escaped, without any negligence on his part; and that he afterwards used due diligence to reclaim them, and that they were taken up by the defendant on the same day they made their escape. These facts were all embodied in a declaration which told the court if they were found to exist the verdict should be for the plaintiff.

Defendant...