State ex rel. Monks v. Bacon

• Decision Date: 01 February 1887
• Citation: 24 Mo.App. 403
• Parties: THE STATE TO THE USE OF W. MONKS, ADMINISTRATOR, Respondent, v. SETH BACON ET AL., Appellants.
• Court: Missouri Court of Appeals

24 Mo.App. 403

THE STATE TO THE USE OF W. MONKS, ADMINISTRATOR, Respondent,

v.SETH BACON ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the Howell County Circuit Court, J. R. WOODSIDE, Judge.

Reversed and remanded.

L. B. WOODSIDE, for the appellants: The petition must allege that the plaintiff was the head of a family. Brown v. Hoffmeister, 71 Mo. 412; Cook v. Putnam Co., 71 Mo. 668; Pierre v. Heinrichoffen, 52 Mo. 333; Scott v. Robards, 67 Mo. 289. The measure of damages is the value of the property taken if not returned. The State to use v. Smith, 31 Mo. 566. The judgment is erroneous for the reason that it was rendered for the amount of the damages claimed instead of the amount of the penalty of the bond. The State ex rel. v. Fitzpatrick, 64 Mo. 185.

D. H. MCINTYRE and W. MONKS, for the respondent: The court did not commit error in overruling the demurrer. The defendant could not fail to understand the grounds upon which he was charged, the petition sufficiently advised him of that, and that was sufficient. Duncan's Adm'r v. Duncan, 19 Mo. 368; Pierre v. Heinrichoffen, 52 Mo. 333, 336. Facts necessarily implied, or necessarily inferable, need not be stated. Bird v. Cotton, 57 Mo. 568; Cross v. Railroad, 77 Mo. 318; Evans v. Bank, 79 Mo. 182; The State ex rel. v. Rush, 77 Mo. 586. The demurrer admits all the facts well pleaded. Bliss on Code Plead., sect. 418; The State ex rel. v. Sandusky, 46 Mo. 377, 380.

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

This is an action upon a constable's bond for official misconduct. The breaches assigned and damages claimed are stated in the petition in the following manner:

“And the plaintiff says that the said Seth Bacon has broken the condition of the said bond, in this, that heretofore, to-wit: on the 8th day of May, 1882, the said Seth Bacon levied an attachment upon a certain mule, the property of the said L. B. Vernon, at the suit of Lawson Scott against L. B. Vernon, C. K. Vernon, and J. H. Vernon, before one W. G. Cantrell, a justice of the peace in Howell township, in the county of Howell, without first apprising the said L. B. Vernon of the property exempt under sections 2342, 2343, and 2346, of the Revised Statutes of Missouri, and of his right to the same as exempt from said attachment, and that, by reason of said wrongful and unlawful attachment of the said mule, the said L. B. Vernon was deprived of the use and possession of the said mule from the 8th day of May, 1882, until the 26th day of April, 1883, a period of 351 days. That the use and possession of the said mule during the said time was worth the sum of fifty cents per day, amounting, in the aggregate, to the sum of one hundred and seventy-five dollars and fifty cents; that the said mule was injured in value, by neglect and ill-treatment, during the said time, in value in the sum of fifty dollars; that the plaintiff incurred loss of actual time and actual expenses in obtaining possession of the said mule, damages in the sum of twenty-five dollars, and that by reason of the foregoing breaches of the said bond the plaintiff has been damaged in the sum of two hundred and forty-seven dollars and fifty cents; wherefore, the plaintiff prays judgment against the defendants for the sum of $247.50, and costs, and other relief.”

The defendant demurred to this petition on the ground that it stated no cause of action. This demurrer was overruled, and the defendant, refusing to plead any further, the court, without entering formal judgment on the demurrer, at once proceeded to hear evidence as to the damages, and entered judgment for the plaintiff, not for the penalty of the bond, but for two hundred and forty-seven dollars, which is, substantially, the amount claimed in the plaintiff's petition.

The plaintiff died during the pendency of this appeal, and his administrator has been substituted.

The defendant appealing assigns for error that the demurrer was improperly overruled, and that all subsequent proceedings were erroneous. The attention of the trial court was called to this error by motion in arrest of judgment.

The fact that the judgment was erroneously entered for the damages claimed, instead of the penalty of the bond, will not, of itself, justify a reversal. The record sufficiently shows that the judgment was based upon evidence adduced, and if formally incorrect, its form could be altered here so as to conform to the law. The State ex rel. v. Sandusky, 46 Mo. 380.

The judgment, however, must be reversed, because the plaintiff's petition fails to state a cause of action, and because the court erred in overruling the defendant's demurrer and motion in arrest of judgment.

The test, whether a petition states a cause of action, is whether all the facts therein stated, if true, will warrant a recovery. Garner v. McCullough, 48 Mo. 318. And it is well settled that a plaintiff must allege all such facts as he is required to prove....