Stephenson v. Porter

• Citation: 45 Mo. 358
• Parties: ALFRED STEPHENSON et al., Defendants in Error, v. WILLIAM H. PORTER, Plaintiff in Error.
• Decision Date: 31 January 1870
• Court: Missouri Supreme Court

45 Mo. 358

ALFRED STEPHENSON et al., Defendants in Error,

v.WILLIAM H. PORTER, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

J. F. Phillips, for plaintiff in error.

Wright & Cochran, for defendants in error.

CURRIER, Judge, delivered the opinion of the court.

This suit was instituted before a justice of the peace to recover a sum claimed to be due from the defendant to the plaintiffs. Judgment was recovered by the plaintiffs, and the defendant appealed to the Circuit Court, where, on a trial de novo, the plaintiff again succeeded, and recovered a judgment for $46.72. On appeal by the defendant to the District Court, the judgment was affirmed, and the defendant now brings the case here by writ of error.

It is objected that the demand in suit exceeds the jurisdiction of a justice; that improper evidence to the prejudice of the defendant was admitted; that the evidence does not support the action; and that the court erred in declaring the law of the case.

1. The account forming the basis of the plaintiffs' claim, and the justice's transcript of his docket, show that the suit was brought to recover the sum of $80.80. The written statement of the case, filed with the justice in connection with the account, also shows that the claim, which consisted of two items--one for $44.80 and one for $36--was for $80.80; but the prayer for judgment is for $90.80. The transcript, the account, and the specific items claimed in the written statement must be taken as showing the “debt or balance” sued for. (Gen. Stat. 1865, ch. 177, § 2.) The amount stated in the prayer for judgment is an evident erroneous footing of the items of the claim sued on.

2. The case shows that the defendant was, in 1861, the sheriff of Pettis county, and that Samuel O. Yankee was his deputy. Yankee, in November of that year, as such deputy, levied an execution on a large number of cattle, the property of the execution debtor, and left them in the plaintiffs' pasture, where they had just been driven for the purpose, as the evidence tended to show, of being separated from cattle owned by the plaintiffs and another party. The plaintiff, Stephenson, testified that he notified Yankee at the time that the pasture belonged to him and his associate, and that they would “hold him responsible;” that he met Yankee a day or two after and told him that unless the animals were removed, or an arrangement was made, he would turn them into the common; that Yankee stated in reply that the animals would be released in a few days; to let them remain, and that he (Stephenson) would be paid for it. He further testified, among other things, that the cattle remained in the pasture for a week or so, and were then...