Stewart ex rel. Ashby v. Ball's Adm'r

• Decision Date: 31 October 1864
• Citation: 35 Mo. 209
• Parties: ELIAS C. STEWART, TO USE OF JNO. J. ASHBY, TRUSTEE, &c., Appellant, v. BALL'S ADM'R., &c., Respondent.
• Court: Missouri Supreme Court

35 Mo. 209

ELIAS C. STEWART, TO USE OF JNO. J. ASHBY, TRUSTEE, &c., Appellant,

v.BALL'S ADM'R., &c., Respondent.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Charles Circuit Court

The respondent David Thomas, administrator of James Ball's estate, holding an execution against one Taliaferro P. Grantham, caused the same to be levied on certain personal property, including a brown mare, the subject of this controversy. The petition sets forth that “notwithstanding the said mare was claimed by Mary D. Grantham, to whose use this suit is brought, the officer making said levy proceeded to sell,” &c. That an indemnifying bond, which is made part of the petition, was given by respondent under the statute. The bond recites that the property, “in proceedings which were had for the trial of the right thereof, was found to be the property of Charles W. Grantham and John J. Hitch, as trustee.” The petition further states that “the said John J. Ashby, trustee of Mary D. Grantham, claims and has a right to the said brown mare,” and “in consequence of the seizure and sale of which” he has sustained damages ($200) for which he asks judgment.

Answer being filed, a jury was sworn to try the issues, and counsel on both sides made their statements of the case to the jury; after which, by leave of the court, respondents withdrew their answer and filed a demurrer to the petition. The demurrer asserts, in effect, that because John J. Ashby, trustee, &c., to whose use the suit is brought, was not a party to the proceedings, in the trial of the right of property, therefore he could not sue upon the bond; that the petition does not show that he has any interest in the suit, or any claim to indemnity, &c. The demurrer was sustained by the court, and judgment given for the defendants; whereupon plaintiff appealed.

E. A. Lewis and W. A. Alexander, for appellant.

I. The demurrer ought not to have been sustained. It is in itself so informal, and such a departure from the requirements of the Practice Act, that the court should have refused to consider any portion of it, except the fourth ground assigned. (R. C. 1855, p. 1231, §§ 6 & 7.) It is immaterial whether the party suing was or was not a party to the proceedings for trial of the right of property. The bond sued on contains within itself all the elements of liability against the signers, upon breach of any of its conditions, else it would be worthless for any purpose. All the statements in the petition, therefore, which connect persons, others than the beneficial plaintiff, with those proceedings, are mere surplusage.

II. The bond is conditioned that the obligors will “pay and satisfy to any...