State ex rel. Armour Packing Co. v. Dickmann
| Decision Date | 04 January 1910 |
| Parties | STATE OF MISSOURI ex rel. ARMOUR PACKING COMPANY, Appellant, v. JOSEPH F. DICKMANN, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.
Judgment reversed and cause remanded.
G. B Webster for appellant.
(1) Upon the uncontroverted evidence the verdict and judgment should have been for the plaintiff. The amended answer admitted that the defendant Dickmann, as sheriff, made the return, and the testimony of the witnesses Boyd, Murray and Grissom, together with the evidence supplied by the charters of Armour & Company and the Armour Packing Company, none of which was contradicted or impeached, conclusively proved its falsity. The essential elements of recovery were thereby established and a judgment for the defendants is unsupported by the evidence. State ex rel. v. Rayburn, 22 Mo.App. 305; State ex rel. v. Harrington, 28 Mo.App 287. Even though no substantial damages were proven, the plaintiff was entitled to judgment for nominal damages. State ex rel. v. Rayburn, 22 Mo.App. 305; State ex rel. v. Dunn, 60 Mo. 64. (2) All of the evidence offered by the defendants was erroneously admitted, because either irrelevant or immaterial, or incompetent. (a) The entire testimony of the witness Macbeth was irrelevant and immaterial because its only probative effect was to show that the Regent Realty Company had a just cause of action against the Armour Packing Company, a question not properly in issue in this case. A public officer cannot defend his breach of duty by the contention that his misconduct has damaged no one. State ex rel. v. Case, 77 Mo. 253; Snell v. Mayo, 62 Ga. 743; Metcalf v. Stryker, 31 N.Y. 255; Cowan v. Sloan, 95 Tenn. 424; Lakin v. State, 89 Ind. 68; Goodrich v. Starr, 18 Vt. 227; Treasr. v. Weeks, 4 Vt. 215; Bacon v. Crosby, 7 N.Y. 195. It was further objectionable because it failed to show any liability of the packing company to the realty company. Mere use and occupancy of premises creates no liability for rent to the owner. Edmonson v. Kite, 43 Mo. 176; Sturgis v. Botts, 24 Mo.App. 286. (b) The letters of Armour Packing Company, without proof that they were genuine, and that the persons signing them were authorized to bind the packing company by the statements contained in them, were incompetent. 3 Wigmore Ev., sec. 2153. The presumption that they were genuine does not carry the presumption that the writers were authorized agents to bind their principal by their statements, because that would be to found a presumption upon a presumption, which cannot be done. Lawson, Presumptive Ev., pp. 652, 653; Glick v. Railroad, 57 Mo.App. 104; Pennington v. Yell, 11 Ark. 236; Doolittle v. Holton, 26 Vt. 588; U. S. v. Ross, 92 U.S. 283. (c) The circuit court erred in admitting in evidence the copies of the letters from Macbeth, no foundation for secondary evidence having been laid. The common law rule for securing documents in the hands of the opposite party for use in evidence, which it is admitted was not superseded by the statute, required the giving of a reasonable notice to produce. Sheehan v. Ins. Co., 53 Mo.App. 351; Coffman v. Ins. Co., 57 Mo.App. 647; Harrison v. Foster, 62 Mo.App. 606. (3) The circuit court was in error in refusing to admit the receipts for rent of the premises paid to Orr by the packing company. Macbeth testified that he knew that Orr was claiming to be agent for the premises, and that when he heard that Orr had collected the rents he wrote and demanded the collections. This was a ratification of Orr's acts and made them binding ab initio. Kelsey v. Bank, 69 Pa. 426; Ruggles v. Washington Co., 3 Mo. 496; Stothard v. Aull, 7 Mo. 318; Kelly v. Gay, 55 Mo.App. 39. The evidence that the sheriff was informed of the falsity of his return while there was yet time to amend it was erroneously ruled out. Lynd v. Picket, 7 Minn. 184. (4) It was error to refuse the plaintiff's requested instruction numbered 7. State ex rel. v. Rayburn, 22 Mo.App. 305; State ex rel. v. Harrington, 28 Mo.App. 287; State ex rel. v. Dunn, 60 Mo. 64. (5) The circuit court committed further error in refusing the plaintiff's requested instruction 9. This presented the theory that there was no liability for rent from mere use and occupancy, and had an important bearing on the measure of damages. Edmondson v. Kite, 43 Mo. 176; Sturgis v. Botts, 24 Mo.App. 286.
Johnson, Houts, Marlatt & Hawes for respondent.
(1) Plaintiff's instructions were all erroneous and were properly refused by the court. Mere non-direction or failure to instruct is not reversible error, unless proper requests were made by the complaining party. Wheeler v. Bowles, 163 Mo. 398; Railroad v. Shoemaker, 160 Mo. 425; Harmon v. Donahoe, 153 Mo. 263; Feary v. O'Neill, 149 Mo. 467; Bertran v. Transit Co., 108 Mo.App. 70; Thompson v. Bucholz, 107 Mo.App. 121; Cornwall v. St. Louis Transit Co., 106 Mo.App. 135. (2) The record shows that before judgment had been entered in the case of the Regent Realty Company v. the Armour Packing Company, the latter filed a motion to quash the return and also filed a bill of exceptions. This action constituted an appearance to that cause, and it cannot therefore complain that it was brought into court by a false return of the sheriff. Young v. Ranken, 4 Howard (Miss.) 27; Tootle-Queakly, etc., Co. v. Billingsly, 105 N.W. 85; Wilson v. Fowler, 3 Ark. 473. (3) The record also shows that after judgment in the case of Regent Realty Company v. Armour Packing Company, the latter sued out a writ of error and gave a supersedeas bond conditioned to pay the judgment if it should be affirmed in the appellant court. (a) The taking of an appeal constitutes an entry of appearance. 2 Ency. of Pleading and Practice, 614; Rumeli v. City of Tampa, 37 South 563; Hodges v. Frazier, 31 Ark. 58; Arkansas Coal Co. v. Haley, 62 Ark. 144; Waggoner v. Fogleman, 53 Ark. 181; Maude v. Rhodes, 34 Ky. 144; Gill v. Johnson, 58 Ky. 649. (b) Likewise the prosecution of a writ of error operates as an entry of appearance. Wilson v. Brandenberg, 16 Ark. 646; Bustamente v. Bescher, 43 Miss. 172. (4) If the prosecution of a writ of error and the giving of a supersedeas bond for the Armour Packing Company constituted an appearance to the suit brought by the Regent Realty Company, such appearance made valid the judgment theretofore obtained, which otherwise would have been invalid for want of service. Miller v. Mining & Milling Co., 192 Mo. 183; Curtis v. Jackson, 23 Minn. 268; Anderson v. Coburn, 27 Wisc. 558; Grantier v. Rosecrance, 27 Wisc. 489; Fee v. Big Sand Iron Co., 13 Ohio St. 563. (5) If the Armour Packing Company justly owed to the Regent Realty Company the amount of money which it was compelled to pay in the suit brought by the Regent Realty Company, it was not damaged by the return of the sheriff, even though such return were false. An officer, when sued for erroneous execution of process, can show that plaintiff's property taken under such process was applied on a just liability of the plaintiff. Stow v. Yarwood, 14 Ill. 424; Bates v. Courtwright, 36 Ill. 518; Trip v. Grouner, 60 Ill. 474; Pierce v. Benjamin, 31 Mass. 356; Caldwell v. Eaton, 5 Mass. 399; Prescott v. Wright, 6 Mass. 20; Erie Preserving Co. v. Kane, 49 Mich. 377; Cooper v. Newman, 45 N.H. 339; Doolittle v. McCullough, 7 Ohio St. 299.
This is a suit on the sheriff's official bond. The finding and judgment were for the defendant and plaintiff appeals. The breach alleged relates to the fact that the sheriff, through one of his deputies, made a false return on a writ of summons to the effect that he had personally served the present plaintiff, the Armour Packing Company, in a suit pending in the circuit court wherein the Regent Realty Company was plaintiff and the Armour Packing Company was defendant. As a result of the false return, a judgment was given in that case against the plaintiff for several hundred dollars. The judgment and the costs were afterwards paid and discharged and the defendant in that case instituted the present action on the sheriff's bond, seeking to recover the amount of the judgment and costs it was compelled to pay as a result of the false return referred to.
It appears that one Annie E. Kerr owned a certain lot of ground and store building situate thereon, in the town of Osceola Missouri, and that plaintiff, the Armour Packing Company, occupied the same as its egg and produce depot at that point for several years from and after January 25, 1901. The evidence goes to show that the Armour Packing Company occupied the building referred to under a lease with one Orr, who claimed to be the agent of George M. Kerr, and that it paid Orr rent each and every month during the period of its occupancy. Annie E. Kerr afterwards sold the property at Osceola, Missouri, to the Regent Realty Company and assigned whatever claim she had for rent accrued to her against the Armour Packing Company, because of its several years' occupancy of the premises. The Regent Realty Company, having succeeded to the title of Annie E. Kerr, the true owner of the property, and her rights touching any rents therefor accrued for its occupancy, made a demand upon the Armour Packing Company for ten dollars a month rent for all of the time it had occupied the premises from and after January 25, 1901. The Armour Packing Company insisted that it had rented the property from Orr, acting as agent of one George M. Kerr, and that it had paid such agent the rent during all the time of its occupancy and declined to comply with the demand of the Regent Realty Company. The Regent Realty Company thereupon instituted suit in the circuit court of the city of St. Louis against the...
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