Watkins v. Green

• Decision Date: 13 February 1906
• Citation: 92 S.W. 1131,116 Mo. App. 593
• Parties: WATKINS v. GREEN.
• Court: Missouri Court of Appeals

92 S.W. 1131

116 Mo. App. 593

WATKINS v. GREEN.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

1. APPEAL—RECORD — MATTERS IN RECORD— MOTION FOR NEW TRIAL.

A motion to set aside the verdict and for a new trial is not a part of the record proper, and can only be made a part of the record by being incorporated therein by bill of exceptions.

2. REPLEVIN—QUESTIONS FOR JURY—ASSESSMENT OF DAMAGES.

Rev. St. 1899, § 3916, requires the jury in actions of replevin to assess the value of a party's interest in the property replevied in case he has only a special interest in the same. In replevin for certain cows, a verdict was rendered for defendant, and thereupon defendant made known to the court that he only claimed a special interest in the cows as pound master and held them merely for the payment of his charges, naming them. Held, that the court should have submitted the value of defendant's special interest in the cows to the jury, and it was error for the court itself to assess that value and to render judgment therefor on defendant's bare statement.

Error to Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. H. Watkins against Dennis Green. There was a judgment for defendant, and plaintiff brings error. Reversed.

J. S. Gossom for plaintiff in error. R. L. Ward, for defendant in error.

BLAND, P. J.

The suit is in replevin begun before a justice of the peace where the plaintiff recovered judgment. Defendant appealed to the circuit court of Pemiscot county, where on a trial anew, verdict and judgment were for him. Neither the transcript nor abstract filed show that a bill of exceptions was ever filed, hence there is nothing before us for review, except the record proper. The record shows that on the 2d day of March, 1905, the issues were submitted to a jury, who, after hearing the evidence, returned into court the following verdict: "J. H. Watkins, Plaintiff, v. D. E. Green, Defendant. We, the jury, find that the defendant, D. E. Green, was entitled to the possession of the cows sued for at the time of the institution of this suit. O. F. Grimes, Foreman." After recording the verdict, the record of the judgment proceeds as follows: "And thereupon come the defendant, D. E. Green, and makes known to the court that he disclaims any right, title, claim, or interest in or to the cows involved in this lawsuit, except the sum of $4, due him as pound master of the city of Caruthersville, for the impounding of said stock. The...