Kerr v. Drew

90 Mo. 147

Opinion

Norton, J. —

This is an action of replevin to recover the possession of certain personal property from the defendant, from whose possession it was taken and delivered to the plaintiff on execution by him of the statutory bond. The defendant in his answer, after denying plaintiff’s right to the property, set up that he held it by virtue of four writs of attachment against one Charles Davis. On the trial defendant obtained judgment for two hundred and twenty-five dollars, the whole value of the property, and sixty-eight dollars damages for its detention.

During the trial plaintiff offered evidence tending to show that on the same day that the property was replevied the attachments were dismissed and renewed on the same day under which a portion of the property was sold and the proceeds, after payment of costs, applied as a.credit on the debts represented in the attachment suits, thereby reducing them from two hundred and nine to one hundred and fifty-five dollars. This evidence was rejected, -to which plaintiff excepted. The defendant as constable had only a special interest in the property, such only as the lien of the attachments created, which is measured by the amount necessary to pay the debts constituting the foundation for the attachment proceedings, and under the rulings of this court in the cases of Dilworth v. McKelvey, 30 Mo. 153; Boutell v. Warne, 62 Mo. 350, and Dougherty v. Cooper, 77 Mo. 535, 536, the evidence offered ought to have been received, and for the error committed in rejecting it the judgment will be reversed and cause remanded, to be proceeded with according to the rule established in the above cases.

All concur.