Walker v. Robertson

• Decision Date: 20 June 1904
• Citation: Walker v. Robertson, 107 Mo. App. 571, 81 S.W. 1183 (Mo. App. 1904)
• Parties: WALKER v. ROBERTSON.
• Court: Missouri Court of Appeals

81 S.W. 1183

107 Mo. App. 571

WALKER v. ROBERTSON.

Kansas City Court of Appeals. Missouri.

June 20, 1904.

REPLEVIN — ANIMALS — ESCAPE — IMPOUNDING — VERDICT — APPEAL — INVITED AND HARMLESS ERROR.

1. Where plaintiff in replevin by an instruction submitted the issue of his ownership of the property in controversy, he could not object on appeal that such issue should not have been submitted because his ownership was admitted of record.

2. Defendant was entitled to impound an animal which escaped into his inclosure on account of plaintiff's failure to maintain a line fence which he was bound to keep in repair.

3. Where, in replevin, defendant did not claim title to the property, nor damages for the detention

thereof, the jury's omission to assess the value of the property, or to fix the damages for the taking and detention, as a part of a verdict for defendant, as required by Rev. St. 1899, § 4473, was not prejudicial to plaintiff.

Appeal from Circuit Court, Worth County; Gallatin Craig, Judge.

Action by Marvin Walker against William Robertson. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Hudson & Dubois, for appellant. A. W. Kelso and Schooler & Lingenfelter, for respondent.

SMITH, P. J.

This is a replevin suit brought before a justice of the peace by plaintiff against defendant to recover the possession of a bull. In the circuit court the verdict of the jury was to the effect that "we, the jury, find for defendant." The judgment was "that plaintiff take nothing by his suit, and defendant go hence without day, and have and recover of plaintiff his costs in this behalf laid out and expended." From this judgment the plaintiff appealed here, where he complains that the court erred in giving the defendant's instruction No. 1, which told the jury that it devolved upon plaintiff to prove that he was the owner and entitled to the possession of the bull, and that the same was wrongfully taken and detained, or wrongfully detained by defendant at the time of the commencement of the suit, and that, unless such facts were established by a preponderance of the evidence, the verdict should be for defendant. The specific grounds of plaintiff's objection to this instruction are that (1) it submitted to the jury the issue whether or not plaintiff was the owner of the bull, when this fact stood admitted by the record; and (2) that it further submitted the issue whether or not the plaintiff was entitled to the possession of the bull, when defendant at the trial claimed no right to hold the animal.

The plaintiff, by an instruction of a like number requested by him and given by the court, told the jury that if it found from the evidence that plaintiff was the owner of the bull, and that defendant had made a low place in the partition fence between plaintiff's and defendant's premises, and that said bull escaped from the plaintiff's premises onto the defendant's premises through said low place, and that thereupon the defendant took possession of said bull, inclosing him in a lot, and...