Vaughn v. Montgomery

• Decision Date: 31 May 1839
• Citation: 5 Mo. 529
• Parties: VAUGHN v. MONTGOMERY.
• Court: Missouri Supreme Court

5 Mo. 529

VAUGHN

v.MONTGOMERY.

Supreme Court of Missouri.

May Term, 1839.

ERROR TO THE CIRCUIT COURT OF PULASKI COUNTY.

P. COLE, for Plaintiff in Error. The Circuit Court erred in its supplemental instructions to the jury, and also erred in refusing a new trial. Authorities to 1st point. Hines v. McKinney, 3 Mo. R. 382; Fenton v. Perkins, 16, 23.2d. point. Downing v. Garner, 1 Mo. R. 751; 2 Stark. Ev. 800-8; 1 Chit. Plead. 183, 184; 1 Johns. Cases, 20, 16, 228; 2 Johns. Cases, 27; Percival v. Jones, 2 Johns. Cases, 49; Hess v. Morgan, 3 Johns. Cases, 84.J. S. BRICKEY, for Defendant in Error. 1. That inasmuch as the court below gave all the instructions required by the plaintiff, the additional instruction given to the jury by the court was correct, therefore the court did not err in instructing the jury. 2. If the court decided correctly in giving the instruction which he did to the jury, upon the whole of the evidence, there is no error in refusing the plaintiff a new trial. 3. Upon the finding of the jury, the court was bound to have given judgment for the defendant. 4. The court will not grant a new trial in a case where the plaintiff can only recover nominal damages, even if the judge does misdirect the jury as to the law. 5. A new trial will not be granted where substantial justice has been done; and the plaintiff at best can only recover nominal damages, even if the court did misinstruct the jury, or if the jury find against the law of the case, 3 Johns. R. 527, Fleming v. Gilbert; 8 Johns. R. 369, Peter v. Whipple; 1 Marsh. R. 80; 2 Marsh. R. 194, Pettis v. Smith.

NAPTON, J.

Vaughn sued Montgomery in trespass before the Circuit Court of Pulaski county, and a verdict and judgment being against him he appealed to this court. The facts, so far as disclosed by the bill of exceptions, were these: One McElroy sued Vaughn before Montgomery, then a justice of the peace, and obtained judgment for $35 debt and $9 75 costs. Vaughn appealed and entered into bond according to law, but afterwards, and before the papers were removed to the clerk's office, both McElroy and Vaughn sent word to the justice to countermand the appeal, assuring him that their case was compromised. The defendant, Montgomery, issued an execution against Vaughn in favor of McElroy for the debts and costs; under which execution the constable levied on and sold Vaughn's wagon, for which alleged trespass the present action was brought. It was also proved that one Casey bought the wagon, as the witness believed, with Vaughn's money, at any rate, that the wagon had remained in his possession ever since. It was also proved that Vaughn sent word to Montgomery that the case was compromised. One witness testified that the constable, on selling the wagon, told plaintiff that he would refund all the money made on the execution except the costs, provided he would show him a receipt from McElroy. This is all the testimony preserved in the bill of exceptions, excepting copies of appeal bond, proceedings before magistrate, &c., but there is no statement in the bill of exceptions that this was all the testimony in the case. The court gave the following instructions to the jury: 1. That if the jury believe from the evidence that an appeal was allowed by Robert Montgomery, acting as a magistrate, the justice had no further jurisdiction in the case. 2. That if they believe from the evidence an appeal was granted, and the defendant afterwards issued an execution, then defendant was a trespasser, unless they believe the appeal was countermanded by the appellant. 3. That if they believe from the evidence an appeal was granted, the justice could not afterwards issue an execution even for costs, unless they believe the appeal was countermanded. The court gave some other instructions in relation to damages which are not complained of, and also instructed the jury that if the Circuit Court had no jurisdiction of the case until the papers were...