Crane v. Timberlake

81 Mo. 431

• Court: Supreme Court of Missouri
• Decided: April 15, 1884
• Status: Published

Opinion

Martin, C.

This was an action of replevin for twenty-eight rams, of the alleged value of $560.

The defendant was in possession of them, as sheriff, in pursuance of an execution against one Samuel Archer. The plaintiff claimed them by virtue of a bill of sale from said execution debtor. The evidence showed that there had been no change of possession, but that they remained in Archer’s possession, the same as before the sale, and that they were so commingled with his other sheep that the plaintiff replevied nine which were not included in his bill of sale. These nine were taken from him under process in favor of a mortgage of the execution debtor, and the defendant makes no claim for return of them, or for damages in lieu thereof. The only way in which the debtor could distinguish his own sheep from the sheep sold to plaintiff, was by his familiarity with “ their countenances and looks.”

The consideration of the sale was an antecedent debt, and it was so manifestly void as to creditors of the vendor, that no serious argument can be made in its support. E. S. 1879, § 2505. The plaintiff being in possession of the property replevied, the court, after finding against him, assessed the value of the nineteen rams at $380, which sum the defendant elected to take in -lieu of a return of the property.

The plaintiff^ in his motion for a new trial, alleges that this assessment was above the actual value of the property, and against the weight of evidence.

The affidavit of plaintiff in the replevin proceeding? as well as the price of the bill of sale given in evidence, supports this assessment. The court did not rule that the plaintiff was concluded by the value stated in' the affidavit. On the contrary, the plaintiff was permitted to produce and did produce other evidence tending to show that the sheep were not worth the amount there stated, and after hearing the other evidence, it rendered judgment at the value disclosed in the affidavit and sale bill. Iu doing this the court exercised its authority of weighing the evidence, and the appellate court will not reverse for supposed errors in this respect.

No instructions or declarations of law are to- be found in the bill of exceptions; and no exceptions on the admission or exclusion of evidence. And as the judgment is supported by evidence, it will have to be affirmed, and it is so ordered.

All concur.