Young v. Glascock

• Decision Date: 31 October 1883
• Citation: 79 Mo. 574
• Parties: YOUNG et al., Appellants, v. GLASCOCK.
• Court: Missouri Supreme Court

79 Mo. 574

YOUNG et al., Appellants,

v.GLASCOCK.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Audrain Circuit Court.--HON. G. PORTER, Judge.

AFFIRMED.

Forrist & Fry for appellants.

Macfarlane & Trimble for respondent.

PHILIPS, C.

This is an action of replevin for the recovery of 2,000 bushels of corn, with the usual allegations. The answer was a general denial.

The bill of exceptions states that the plaintiffs introduced evidence tending to sustain the allegations of the petition, and showing that the value of the corn in question was $300. The defendant introduced evidence tending to show that the property belonged to one Ernest Ahlfeldt; that the defendant, as sheriff of said county, had, prior thereto, seized said property as the property of said Ahlfeldt under a writ of attachment in favor or Wahl & Co., creditors of said Ahlfeldt; and that said sheriff so held the same at the time of the suing out and execution of the writ of replevin; and also that the plaintiffs, who claimed the property as purchasers of said Ahlfeldt, on a contract of sale made prior to said seizure under the writ of attachment, had not taken possession thereof when the same was so seized under the writ of attachment, and that said sale was colorable only, etc. To all of this evidence the plaintiffs objected on the ground that under the plea of the general issue tendered in the answer such proof was inadmissible. Thereupon the defendant offered to amend his answer in conformity to the statute so as to meet the objection. The case seems then to have proceeded as if the amended answer had been accordingly filed. The court, sitting as a jury, found the issues for the defendant and rendered judgment against the plaintiffs, who had the property in possession, and the sureties on the replevin bond, for the value of the property. The plaintiffs filed motion for new trial and in arrest of judgment, claiming, inter alia, that there was no answer to sustain the judgment. Thereupon the defendant offered to amend the answer in accordance with the leave theretofore given by the court. The plaintiffs objected, and the court declined to allow the amendment on the ground that the same was not necessary. The motions were overruled and the plaintiffs have appealed to this court.

The errors relied upon for reversal are, 1st, That the circuit court erred in admitting the evidence introduced by defendant; and 2nd, Because, under the answer, the defendant was not entitled to a judgment rendered for the value of the property.

I. As to the first objection, we are of the opinion that under the general issue the proof offered by the defendant was competent. The rule in this respect was very aptly stated in Greenway v. James, 34 Mo. 328: Where the cause of action which once existed has been determined by some matter which subsequently transpired, such new matter must, to comply with the statute, be specially pleaded; but where the cause of action alleged never existed, the appropriate defense under the law is a denial of the material allegations of the petition, and such facts as tend to disprove the controverted allegations are pertinent to the issue. In the case at bar the rejected testimony disproved the respondent's ownership of the property, and thereby showed the cause of action alleged had never existed. I understand the requirement of the Practice Act, that new matter constituting a defense must be specially pleaded, to apply to such extraneous matters as are not included within the allegations necessary to support the plaintiff's case. Northrup v. Miss. Val. Ins. Co., 47 Mo. 435. But in the action of replevin, as in that of ejectment, where the pleading on the part of the plaintiff is a general averment of ownership of the property and a consequent right of possession, any proof on the part of the defendant, which goes to show that the plaintiff, at the time of the institution of the suit, was not the actual owner, and was not entitled to the possession thereof, is admissible under the general issue, even though it extend to the proof of fraud in the acquisition of plaintiff's title, or that the ownership and right of possession were in a third party. Schulenberg v. Harriman, 21 Wall. 45; Mather v. Hutchinson, 25 Wis. 27, 36; Caldwell v. Bruggerman, 4 Minn. 270, 276; Wheeler v. Billings, 38 N. Y. 264; Bosse v. Thomas, 3 Mo. App. 472. Where, in the action of replevin, under a code not unlike ours, the answer contained a general denial, and then further pleaded that the property was owned and possessed at the time by a third party, it was held that this additional averment was but another form of denial and not new matter which would be taken as admitted by a failure to reply. Woodworth v. Knowlton, 22 Cal. 164. The fact that the evidence thus introduced was of an affirmative character does not matter, because it contradicts the allegations of the complaint, “and may therefore be proved, to maintain the negative issue raised by the defendant's denial.” Pom. on Rem. and Rem'l Rights, § 671.

The evidence presented by the defendant went to the point that at the time of the institution of plaintiffs' action they were not the owners in law and fact of the corn and were not entitled to the possession thereof. The facts thus introduced were not supervenient; they tended to show that the cause of action never existed by reason of facts existing at the time of the filing of the suit. Wheeler & W. M. Co. v. Tinsley, 75 Mo. 458.

II. The second ground of error assigned is more serious. The statute of 1855, (§ 11, p. 1245,) provided that: “If the plaintiff fail to prosecute his action with effect and without delay, and have the property in his possession, the court or a jury shall assess the value of the property taken and the damages for taking and detention of the same,” etc. In 1860, (Laws 1860, p. 87,) the legislature amended said section in the statute of 1855 by inserting after the words “and shall have the property in his possession” the following words: “and the defendant in his answer claims the same and demands a return thereof.” This amendment had some purpose and a meaning. It perhaps is enough to say in such a case that the statute stands for a reason. This section as amended has been carried forward into all revisions of the statute. It does not appear that it has ever been directly construed by this court. The first case reported, where the question, if it had been raised, might have been passed upon, is that of Fallon v. Manning, 35 Mo. 271. The answer there did not contain the prayer for the return of the property or for the assessed value thereof. But on an examination of the original transcript it appears that the action was brought about the time of the amendatory enactment of 1860. And it is probable the amendment was overlooked both by counsel and court. In Nelson v. Luchtemeyer, 49 Mo. 56, cited by respondent, the answer...