White v. Van Houten

• Decision Date: 28 February 1873
• Citation: 51 Mo. 577
• Parties: WESLEY WHITE, Appellant, v. S, VAN HOUTEN, et al., Respondents.
• Court: Missouri Supreme Court

51 Mo. 577

WESLEY WHITE, Appellant,

v.S, VAN HOUTEN, et al., Respondents.

Supreme Court of Missouri.

February Term, 1873.

Appeal from Linn Circuit Court.

S. P. Huston, for Appellant.

I. The complaint does not show that the matter has been adjudicated. If no damages were assessed on the trial of claim and delivery they could be recorded by a common law action on the bond. (Collins vs. Hough, 26 Mo., 149; Berghoff vs. Hechwolf, Id., 511; Hansard vs. Reed, 29 Mo., 472; Eliott vs. Black, 45 Mo., 372.)

If the damages had been inquired into and the matter had been adjudicated, it was matter of defense, and appellant was not required to negative it in his complaint.

II. The complaint assigns for breach of the bond failure to prosecute the appeal with effect. (Smith vs. Winston, 10 Mo., 299; Berghoff vs. Hechwolf, 26 Mo., 149.)

W. H. Brownlee, for Respondents.

This is a statutory proceeding, and the statute (W. S., 819, § 15,) directs what the judgment must be. This case being prosecuted to final judgment before the justice, and judgment having been rendered for return of property and costs against appellees by reason of their obligation on the bond, and that judgment being fully performed by them, another action will not lie on the bond against them for the damages, if any, neglected to be inquired of at that trial. Appellant has had his day in court. (Hohenthal vs. Watson, 28 Mo., 360; Chambers vs. Waters, 7 Cal., 390; Millett vs. Hayton, 1 Wis., 401.)

WAGNER, Judge, delivered the opinion of the court.

The respondent, Van Houten, commenced an action under the statute, for the claim and delivery of personal property, before a Justice of the Peace, to recover possession of a horse, gave bond with the other defendants herein, as sureties, and received possession of the horse. Upon the trial before the Justice, Van Houten failed to recover, the jury found the horse to be the property of White, the defendant in that case and plaintiff here, and also found his value. The usual judgment was rendered, against Van Houten and his sureties for the return of the property, or the payment of the value and costs. Van Houton complied with and performed the judgment, by delivering to White the horse and paying the costs. When this case was before the Justice, White neglected to introduce evidence in regard to his damages, and no damages were found or assessed upon the trial. White then brought this action against Van Houten, and his sureties on his bond alleging as his cause of action, that Van Honten had failed to prosecute his suit with effect, also showing by his complaint, that the first suit had been prosecuted to final judgment.

This trial was had before a Justice of the Peace and jury, and plaintiff had a verdict for fifteen dollars and sixty cents.

The respondents appealed the case to the Circuit Court, and in that Court they filed a motion to dismiss the suit, for the reason, that the complaint shows, that the matters stated were es judicata, and that no breaches were assigned. This motion was sustained and the suit dismissed, and the plaintiff appealed to this court.

The statute provides in cases of this kind that the judgment shall be against the plaintiff and his sureties; that he return the property taken, or pay the value assessed, at the discretion of the defendant, and also pay double the damages for the detention of the property and costs of suit. (2 W. S., p. 819, § 15.)

The law surely contemplated, that when the...