Tobin v. McCann

• Decision Date: 21 April 1885
• Parties: C. TOBIN ET AL., Respondents, v. P. MCCANN ET AL., Appellants.
• Court: Missouri Court of Appeals

17 Mo.App. 481

C. TOBIN ET AL., Respondents,

v.P. MCCANN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 21, 1885.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and dismissed.

J. J. MCCANN, for the appellants: “When all the facts alleged in the complaint are conceded to be true, but they are not sufficient to constitute a case of action, the occurrence of a material fact after the service of the summons can not be incorporated in the complaint, and will not be of any avail in maintaining the action, because THE RIGHT OF ACTION MUST BE COMPLETE BEFORE THE SUIT IS BROUGHT.”--Wait's Actions and Defences, vol. 1, sect. 7, page 41; McCullough v. Colby, 4 Bosw. 603; 5 Bosw. 477; Watson v. Thibou, 17 Abb. 184; Buchanan v. Comstock, 57 Barb. 582; Hare v. Van Deusen, 32 Barb. 92; Oothout v. Ballard, 41 Barb. 33; Smith v. Aylesworth, 40 Barb. 104; Bostwick v. Menck, 4 Daly 68; Church v. Frost, 3 Thomp. & Cook 318; Muller v. Early, 5 Jones & Sp. 388.

DAVID MURPHY, for the respondents.

LEWIS, P. J., delivered the opinion of the court.

The defendant McCann had a justice's judgment against the plaintiff Richard Tobin, and caused his execution to be levied on two cows and a calf, which the plaintiff Catherine Tobin, wife of Richard, claimed, under the act concerning sheriffs and marshals of 1855, as her separate property. McCann thereupon gave an indemnifying bond, under the same act, with his present co-defendants as sureties. Catherine Tobin afterwards replevied the same property from the constable and took it out of the state. The replevin suit was decided against her, chiefly on the ground that her rights were represented by the indemnifying bond, and a judgment was rendered in favor of the defendants therein for $150.

The original petition in the present suit of Catherine Tobin and her husband alleges that the cattle sustained injuries while in the officer's custody, and demands damage therefor in the sum of $125. Upon this petition the plaintiffs obtained a judgment in the circuit court for $89.11. On the defendants' appeal to this court, that judgment was reversed, because it was manifest from the record that the amount of the recovery was fixed by the value of the property at the time of the levy, and not by the injuries done to it while in custody; which last constituted the only cause of action set up in the petition. After the return of the cause to the circuit court, the plaintiffs filed an amended petition, alleging a conversion of the property by the defendants, and demanding damages therefor in the sum of $110. The issues were tried by the court, sitting as a jury, and a judgment was given in favor of the plaintiffs for $100. No instructions were given, and none were asked for, except one at the close of the plaintiffs' case in the nature of a demurrer to the evidence, which was refused. At the first trial of the cause, Mrs. Tobin, as a witness, estimated her losses from injuries to the cattle while in the constable's keeping, at the aggregate sum of $10. The effect of this court's ruling on the appeal from that trial, was a limitation of her possible recovery, as the case stood, to...