State ex rel. Gannett v. Johnson

• Decision Date: 14 February 1876
• Citation: 1 Mo.App. 219
• Parties: THE STATE OF MISSOURI, to use of JOHN GANNETT et al., Respondent, v. ANDREW JOHNSON et al., Appellants.
• Court: Missouri Court of Appeals

1 Mo.App. 219

THE STATE OF MISSOURI, to use of JOHN GANNETT et al., Respondent,

v.ANDREW JOHNSON et al., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 14, 1876.

1. After bond given by the defendant, under “An act concerning the duties of sheriff and marshal,” etc., approved March 3, 1855, the notice of plaintiff's claim cannot be objected to for insufficiency.

2. Testimony to show that a purchaser of personal property had ample means to make the purchase may be wholly unnecessary in the absence of any attempt to show the contrary. But its admission cannot prejudice the rights of the opposite party, and will not be error.

APPEAL from St. Louis Circuit Court.

Affirmed.

M. L. Gray, for appellants, cited; 1 Greenl. on Ev. 440, and notes; Young v. McClure, 2 Watts & S. (Penn.) 147; Carpenter v. Mayer, 5 Watts (Penn.), 485; Hanly v. St. Louis Butchers, 39 Mo. 217; Barr v. Reiley, 53 Tenn. 285; Walters v. Cralls, 8 B. Mon. (Ky.) 11; Chase v. Ralston, 30 Penn. St. 541; Claflin et al. v. Rosenburg, 42 Mo. 439.

R. E. Rombauer, for respondent, cited: Van Sant. Pl. 239, 258; McMurry & Thomas v. Gifford, 5 How. (N. Y.) Pr. 15; Iron v. Childs, 28 Mo. 576; State, to use, v. Watson, 30 Mo. 122; Hill v. Sturgeon, 28 Mo. 323, 329; Hamilton v. Scull, Admr., 25 Mo. 165; State, to use, v. King, 45 Mo. 238, 240, 241; Bay v. Sullivan, 30 Mo. 191; Gonsolis v. Gearhart, 31 Mo. 585; McKay & Wood v. Underwood, 47 Mo. 185.

LEWIS, J., delivered the opinion of the court.

This is an action upon an indemnifying bond, under “An act concerning the duties of sheriff and marshal, etc.,” approved March 3, 1855, given by defendants on account of an execution levy upon a piano as the property of John T. Fiala, which was claimed by the usee of the plaintiff. Plaintiff recovered judgment in the court below.

Defendants objected, on the trial, to the notice of plaintiff's claim, as served upon the officer, for insufficiency. The notice does not appear in the bill of exceptions; so that we are unable to pass upon it. At all events, the objection stated could not be raised after the bond was given. State, use of Goldsall, v. Watson, 30 Mo. 122.

The testimony tended to prove that Fiala, who formerly owned the piano, went to California, from St. Louis, in October, 1871, leaving with his wife full authority to sell or dispose of any of his personalty, but not with reference to any apprehended claims of creditors, by execution or otherwise; that Miss Mackey, who has since intermarried with John Gannett, the plaintiff's usee, boarded with his family, and, on February 2, 1872, purchased the piano from Mrs. Fiala, for cash paid, at the price of $300, having no knowledge, at the time, of any judgments or executions existing or anticipated against Fiala; that the defendants obtained a judgment on the 6th, and caused the piano to be levied upon on the 28th, of the same month; that, from the time of Miss Mackey's purchase until the levy, the piano remained in the dining-room, where it had usually stood, and was there used by different members of the family, Miss Mackey being part of the time confined to her room by sickness.

Objection was made by defendant to the testimony of George W Smith, which tended to show that Miss Mackey possessed ample means to make the purchase. This testimony may have been unnecessary, in the absence of any attempt by defendants to impeach the lady's purchasing capacity, but we cannot see how it could possibly prejudice the defendants' rights, or furnish any ground of error.

Herman Block, not a dealer in pianos, testified touching the value of the instrument. This, the defendants insist, was erroneous because the witness was not an expert. No rule requires any special qualification of an expert to estimate the value of household articles in common use. In this case, however, the jury placed the value considerably below that stated by Block, and appear to have accepted the defendant's own estimate of $300, as stated in their bond. Hence no wrong was done them in this particular.

At the instance of plaintiff, ...