Ewald v. Waterhont

37 Mo. 602

• Court: Supreme Court of Missouri
• Decided: March 15, 1866
• Status: Published

Opinion

Holmes, Judge-,

delivered the opinion of the court.

This was a suit for the wrongful taking of the plaintiff’s horse. On the trial, the plaintiff gave evidence tending to prove that he was the owner of the horse mentioned in his petition, and the value of the horse, and there rested his case. No evidence whatever was offered on his part to show that the defendant had taken his horse, or even had possession of the horse, wrongfully or otherwise.

The defendant put in evidence a transcript of the proceedings of justice of the peace, in a suit of replevin for this horse, in his own favor and against this plaintiff, by whioh.it appeared that the plaintiff therein had recovered judgment; and it was proved that the horse had been seized by the constable, and delivered to the defendant herein, under the writ of replevin.

It is clear that, on the case made, the plaintiff was not entitled to recover at all. His instructions were rightfully refused.

Judgment affirmed.

Judge Wagner concurs; Judge Lovelace not sitting.