Herring v. Corder

49 Mo. App. 378, 1892 Mo. App. LEXIS 230

• Court: Missouri Court of Appeals
• Decided: April 25, 1892
• Status: Published

Opinion

Ellison, J.

This is an action of replevin. The answer admitted plaintiff was entitled to a portion of the property, and denied his being so entitled to other portions. Judgment was rendered in defendant’s favor for a large part of the property claimed by him in his answer, and plaintiff appeals. Many of plaintiff’s points in the case cannot be considered, from the fact that the bill of exceptions was filed after the expiration of the time granted him for filing.

On the record proper we find no error justifying a reversal. The judgment, “ that the defendant recover of plaintiff the said ninety-one hogs and three calves, or, at his election, take judgment for the sum of $442, the value of said property so adjudged to be returned to him,” is a substantial compliance with the statute requiring the judgment to be in the alternative, though it is informal. R. S. 1889, sec. 7490. As the hogs and calves had been in other parts of the finding and judgment referred to as having been taken by the writ Of replevin, we think the description of the property is not so vague as to invalidate the judgment.

I. It is insisted that the finding and judgment should have assessed the value of each hog and calf separately, in order that, if plaintiff returned a part of them, it would be known how to credit the judgment. Without passing on such question we will say that even if the value of each separate article of personal property ought to be found by the jury the error in failing to so find is waived, if not objected to, at the return of the verdict. Cobbey on Replevin, secs. 1063-4.

We find nothing in other objections which we feel would justify us in disturbing the judgment, and it is accordingly affirmed.

All concur.