Wright v. Richmond

• Decision Date: 23 February 1886
• Citation: 21 Mo.App. 76
• Parties: A. WRIGHT, Respondent, v. E. J. RICHMOND, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 76

A. WRIGHT, Respondent,

v.E. J. RICHMOND, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1886.

APPEAL from the Scott County Circuit, J. D. FOSTER, Judge.

Reversed and remanded with directions.

HUNTER & BROWN, for the appellant: The plaintiff in replevin must be the owner or entitled to the immediate and exclusive possession of the thing in controversy. Melton v. McDonald, 2 Mo. 45; Pilkington v. Trigg, 28 Mo. 95; Cross v. Hulett, 53 Mo. 397. Mere naked possession is not sufficient. Gartside v. Nixon, 43 Mo. 138; Gray v. Parker, 38 Mo. 160; Morgner v. Biggs, 46 Mo. 65. The testimony concerning statements of the defendant's son was hearsay. 1 Greenl. Ev., pt. 2, ch. 5, 114.

THOROUGHMAN, CHRISTIAN & PRIEST, and MARSHALL ARNOLD, for the respondent: If the mule did not belong to the defendant, and he took him from the possession of the plaintiff without the plaintiff's knowledge or consent, as the undisputed evidence shows, the defendant is a trespasser, having no right or claim to the property whatever, and the mere possession of the plaintiff is all that is required to sustain this action. Smith v. Lydick, 42 Mo. 209; Summons v. Beaubien, 36 Mo. 307.

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

The plaintiff, owner of a farm and live stock, had his horses brought from a neighboring range to his farm, in February or March, 1882. A mule, the subject of the present suit, which was unknown to the plaintiff, appeared among the horses, and was turned into the plaintiff's enclosure. Soon afterwards, the defendant saw the animal and claimed it as his property. The plaintiff told him to bring one or two witnesses by whom he could prove his ownership, and the mule would then be delivered up to him. This the defendant undertook to do. About two years then passed without any change in the situation. The defendant sometimes mentioned his claim to the plaintiff, but never produced any witnesses, as promised. He testified at the trial that he had made several efforts to do so, but failed from no fault of his own. In the meantime, the plaintiff took no steps towards posting the mule as a stray, and, in his testimony, explained that this was because of the defendant's claim of the property. Finally, the defendant went to the farm of the plaintiff, in his absence, when the plaintiff's hired man, without any authority from his employer, delivered the mule to the defendant, under a promise of fifteen dollars, to be paid for the keeping of the animal. It appears that this amount was never paid. The plaintiff thereupon sued in replevin before a justice of the peace, where he obtained judgment, and on the defendant's appeal, again obtained judgment in the circuit court.

There was a good deal of uncontradicted testimony, tending to show that the mule really belonged to the defendant, and had escaped from his enclosure some time before it got into the plaintiff's possession. The plaintiff's recovery seems to have been based on the wrongful taking by the defendant, while the plaintiff was in peaceable possession of the property, without regard to any question of ownership in either party. But the law does not sustain such a supposed right of recovery. Replevin can not be maintained on a mere naked possession, without a general or special property in the plaintiff. Broadwater v. Darne, 10 Mo. 277.

It can not be pretended that the plaintiff in this case had either a general or a special property in the mule. He could have acquired a special property in the animal by a compliance with the stray laws; but this he never attempted to do.

Formerly, the statute imposed a penalty upon any one who should take up a stray and then fail to comply with the provisions of the law. 2 Wag. Stat. 1301, sect. 30. Referring to this statute, it was held in Bayless v. Lafaivre (37 Mo. 119), that a party who had taken up a stray and kept it in his possession for a year without complying with the stray laws, was to be considered as a trespasser ab initio, and as having no such possession or right of possession as would enable him to recover against another who had received the stray from a third person. The same statutory provision is not now in force, but the policy of the law is unchanged. The stray law is designed to provide a means whereby the owner of animals may not necessarily lose them because they wander away from his premises. It defines what description of persons may take up a stray, and under what particular circumstances. It then directs that the taker up shall, by notices, advertisements, and registration in prescribed forms, publish the facts, with a description of the animal, so as to insure the highest probability that the owner, whoever he may be, will discover what has become of his property, and where he may recover it. Compensation is provided for every act and expenditure involved. Restrictions are thrown around the taker up, as to the proper care of the stray, and against his disposal or removal of it, so as to endanger the owner's ultimate recovery of his property. These, and other regulations, are a protection guarantied by the law to every owner of live stock within the descriptive terms of the statute. A man who takes, keeps, and uses an animal not his own, and yet embraced in these protective provisions, is a trespasser upon the legal rights of the true owner and a violator of the law. The plaintiff in the present case was a person authorized by the law to take up and post a stray. The mule in question came into his possession within the limitations of the same law. When he kept the animal within his enclosure, along with his other stock, he became a “taker up” of the stray, within the clear intent of the law. By his failure to take the subsequent steps which the law commands, he forfeited all claim to any right of possession or special property which would entitle him to maintain this action,

The plaintiff,...