Baird v. Taylor

30 Mo. App. 580, 1888 Mo. App. LEXIS 315

• Court: Missouri Court of Appeals
• Decided: April 24, 1888
• Status: Published

Opinion

Peers, J.,

delivered the opinion of the court.

This is an action in replevin for one bale of lint cotton of the value of forty-six dollars, commenced before a justice of the peace in Dunklin county. The plaintiffs had judgment and the defendant appealed to the circuit court where, upon trial, the court rendered judgment for plaintiffs for the recovery of the bale of cotton replevied, or in lieu thereof the sum of forty-six dollars, the value of said cotton, together with their ■costs and charges.

The record before us contains no bill of exceptions, no such bill being offered or filed by the appellants, or signed and allowed by the court, as required by statute.

It is evident from an examination of the record that the judgment of the lower court is erroneous in this : It is for the recovery of the property, or in lieu thereof the assessed value of the property. This would be correct if the property were in the possession of the defendant, but being in possession of the plaintiffs, this rule does not apply.

“ If the defendant have not the property in possession, the court or jury shall assess the damages (for the wrongful detention) and the judgment shall be against the defendant and his securities for the damages so assessed, and costs of suit.” Rev. Stat., sec. 3857.

The possession of the property in this case was with the plaintiffs, and the judgment being for them, they were entitled to retain the same, and to- have-judgment for such amount as the evidence shows- they were-damaged by reason of the wrongful detention of the property by the defendant.

As no good reason exists why the- case should be remanded, the judgment of the circuit court will be reversed, and judgment entered in. this-court for plaintiffs for the possession of the property and one cent damages for the wrongful detention thereof.

All the judges concurring, it is so ordered.