State v. Samuels

• Decision Date: 31 January 1888
• Citation: 28 Mo.App. 649
• Parties: THE STATE to the use of ANDREW COOLEY, Administrator, Respondent, v. JOHN T. SAMUELS et al., Appellants.
• Court: Missouri Court of Appeals

28 Mo.App. 649

THE STATE to the use of ANDREW COOLEY, Administrator, Respondent, v. JOHN T. SAMUELS et al., Appellants.

Court of Appeals of Missouri, St. Louis.

January 31, 1888

APPEAL from the Cape Girardeau Court of Common Pleas, HON. ROBERT L WILSON, Judge.

Reversed and remanded.

R. B OLIVER, for the appellants: The court erred in striking out the third, fourth, and fifth counts of defendants' answer. Rev. Stat., secs. 985, 3519, 2, 105, 107; Shockley v. Fischer, 21 Mo.App. 551; Gamble v Johnson, 9 Mo. 605. The defences are consistent. State ex rel. v. Stark, 10 Mo.App. 591; Wood v. Hilbish, 23 Mo.App. 389; Patrick v. Gas Light Co., 17 Mo.App. 462. The sixth count is in the nature of a general denial, and it required the plaintiff to prove every allegation in his petition. Rhine v. Montgomery, 50 Mo. 566; Sturdevant v. Rehard, 60 Mo. 152; Ledbetter v. Ledbetter, 88 Mo. 60; Hoffman v. Perry, 23 Mo.App. 20. Conceding, for the moment, that the court was right in so construing defendants' answer, we insist that it erred in refusing our repeated offers to amend, instanter. Carr v. Moss, 87 Mo. 447. The court erred in not permitting defendants to show by plaintiff himself that Horn did not own the goods that he claimed the defendants seized and sold. The answer is that he seized and sold goods that were liable for the purchase price. The court ought to have given the instruction at the close of plaintiff's evidence. Hurd v. Railroad, 89 Mo. 607; Morgan v. Durfee, 69 Mo. 469; Speak v. Ely, Walker & Co., 22 Mo.App. 122. The court ought to have given the instructions prayed for by defendants. Rosencrans v. Railroad, 83 Mo. 678; Nichols v. Winfrey, 79 Mo. 544, 551; Dowling v. Allen & Co., 88 Mo. 293.

OPINION

ROMBAUER J.

This action is one upon a constable's official bond, against him and his sureties, to recover damages caused by his wrongful act in selling under execution property of the plaintiff's decedent, which was exempt from seizure and sale on execution.

The breaches assigned are, the wrongful seizure and sale of the property claimed to be thus exempt, and the wrongful disregard of the defendant constable's official duties in failing to apprise the decedent of his exemptions. A schedule of the property claimed to have been thus seized and sold is attached to the petition as exhibit A.

The defendants' answer purports to set up six defences:

(1) Denies that the property levied on was exempt from execution.

(2) Asserts that the property was seized and sold on executions issued upon judgments recovered against the decedent for the purchase price of the property sold.

(3) Asserts that the defendant, at the date of the seizure, was fraudulently selling and disposing of said property.

(4) Asserts that neither the plaintiff, nor any one for him, has filed a bond for costs in this case with a solvent surety.

(5) Asserts that, at the death of the decedent, he did not own any more property, including the amount herein sued for, than was given by law to his widow and minor children as their absolute property, and that, under the statute, such widow and children are the proper and necessary parties to whose use this suit should be prosecuted, " and that said Cooley, as administrator of said Horn, is not a proper or necessary party."

(6) Pleads the general issue.

The third, fourth, and fifth pleas were stricken out on plaintiff's motion. On the three other pleas issue was taken by reply.

The trial resulted in a verdict and judgment for plaintiff for substantial damages, and the defendants appeal.

There was no error in striking out the third, fourth, and fifth pleas. The third sets up no defence whatever. The fourth states facts upon which a motion to dismiss might have been based, but which are no defence to the action either in bar or in abatement. The fifth, regardless of other considerations, was bad because it failed to state that the decedent left surviving him any widow or minor children.

Upon the trial of the cause the defendants offered to prove that the defendant constable did not levy upon and sell the articles mentioned and described in exhibit A., and also offered to prove that the articles mentioned in exhibit A. were neither owned nor in the possession of the plaintiff's decedent. This proof was objected to by the plaintiff, on the ground " that the defendants' answer admitted possession, ownership, and sale of the items in said exhibit A.," and the objection was sustained and the defendants excepted.

The defendants then moved the court to allow them to amend their answer instanter, so as to deny the possession and ownership of said goods by Horn, at the date of the levy and sale of the goods, if the court construed the answer as admitting such...