State v. Mathieson

• Citation: 261 S.W. 335
• Decision Date: 27 February 1924
• Docket Number: No. 3243.,3243.
• Parties: STATE ex rel. LARSON v. MATHIESON et al.
• Court: Court of Appeal of Missouri (US)

261 S.W. 335

STATE ex rel. LARSON v. MATHIESON et al.

No. 3243.

Springfield Court of Appeals. Missouri.

February 27, 1924.

Rehearing Denied April 8, 1924.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Suit on attachment bond by the State, on the relation of El. A. Larson, against R. B. Mathieson and others. From judgment giving him insufficient relief, the relator appeals. Affirmed.

M. R. Lively, of Webb City, for appellant.

Moore, Barrett & Moore, of Ozark, for respondents.

BRADLEY, J.

This is a suit on an attachment bond. Judgment was given for an amount deemed inadequate by relator, and he appealed.

This cause, and also State ex rel. Myers v. Mathieson et al., 207 Mo. App. 676, 232 S. W. 181, hereinafter referred to as the Myers Case, grew out of the proceedings in attachment in Mathewson v. Larson-Myers Co. (Mo. App.) 217 S. W. 609. We make reference to those cases for a statement of the facts of the present appeal so far as applicable. What additional statement may be necessary we will make in the course of the opinion.

Under the attachment writ the sheriff seized individual property of the relator, Larson, and this cause is to recover damages on the attachment bond for such seizure. We will refer to Larson as plaintiff for convenience. Plaintiff made the usual allegations. Defendant Mathieson denied that plaintiff was damaged, and pleaded as a setoff the balance plaintiff owed on the judgment in Mathewson v. Larson Co., supra. Defendants Easterday and Crowder, answering separately, pleaded the same defense as defendant Mathieson, except as to the set-off.

The court directed a finding for plaintiff, and under that direction the jury returned a verdict for plaintiff for $25. Likewise a direction was given to find for defendant Mathieson on his set-off for $669.37. On motion for new trial the court, according to the abstract of the record, and also according to the certified copy of judgment on file here, made the following order:

"Court being of the opinion that verdict for the relator was inadequate to the extent of $50, that sum is deducted from the net amount of defendant's judgment rendered, and now reduces said net judgment from $644.37 to $594.-37, and overrules the motion for a new trial."

In making this order the court was assuming that the judgment when entered, if no change was made, would be for defendant Mathieson for the difference between $669.37, the amount of the verdict on the set-off, and $25, the amount of plaintiff's verdict. The judgment actually entered following the above order was "that relator have and recover of and from defendants the sum of $75 on his cause of action herein, and that defendant Mathieson have and recover of and from relator herein the sum of $594.37 op his counterclaim." In reality, instead of only reducing defendant Mathieson's judgment $50, the court increased plaintiff's judgment $50, and reduced defendant Mathieson's $75.

Plaintiff assigns error (1) on the contention that the defense of set-off pleaded was res adjudicate; (2) that error was committed in the admission and exclusion of evidence; (a) in the modification of the verdict; (4) in taxing the costs against plaintiff; and (5) that there is no evidence to justify the alleged inadequate verdict for plaintiff.

Plaintiff did not plead that the defense based on the set-off was res adjudicate. Further, as appears from the files in this court in the Myers Case, of which we will take judicial notice (State ex rel. Ponath v. Hamilton [Mo. Sup.] 240 S. W. 445), the judgment pleaded in the case at bar as a set-off was not pleaded as a set-off in the Myers Case, and was the basis of no part of the judgment on the set-off in that case. The opinion in that case states the facts as to the set-off there pleaded. The judgment on the set-off in that case was based on a $150 demand which defendant Mathieson had against Myers individually. We state in the opinion in the Myers Case that, "while defendant mentioned the judgment...