Oliver v. Wooley

68 Mo. App. 304, 1897 Mo. App. LEXIS 353

• Court: Missouri Court of Appeals
• Decided: January 11, 1897
• Status: Published

Opinion

Ellison, J.

This is an action of replevin instituted in the circuit court. Plaintiff recovered. Wooley claimed the goods as constable, under a levy of an execution. As the principal point made relates to the sufficiency of the petition, we set it out:'

“Plaintiff for her first amended petition and affi- • davit states that she is, and at the time of the commencement of this suit was, the owner and lawfully entitled to the possession of the following described personal property, to wit: 1 oak bedstead, 1 mattress, a bed spring, 2 stand tables, 4 chairs, 1 child’s rocking horse, 1 tub, 1 wash board, 1 clothes boiler, 1 clothes wringer, a hanging lamp, a rag carpet, 1 clothes basket, 1 feather bed, 3 ingrain carpets, 3 pillows, 1 bolster, 6 bed comforts, 1 bed quilt, 3 pillow cases, 1 bolster case, 3 curtain poles, 2 curtains, 1 sewing machine, 1 wash bowl, 1 pitcher, 1 set of queensware dishes, 1 set of cooking stove utensils, consisting of 1 griddle, 2 pie pans, 2 bread pans, a coffee mill, 2 skillets, 1 rolling pin, a steam cooker, a flour chest, 2 boxes, 20 quarts of canned fruit, 1\ gallons jelly, 20 fruit jars, of the value of one hundred and nine dollars and twenty-five cents ($109.25). That the same is wrongfully detained by defendants at the county of Linn aforesaid; and has not been seized under any process, execution, or attachment against the property of the plaintiff; that said property has been injured by defendants, by handling, storage, and otherwise, to the amount of twenty dollars, and the plaintiff has been damaged by the taking and detention of said property and all injuries thereto in the sum of forty dollars, and that she will be in danger of losing her said property unless taken out of the possession of defendants. Wherefore, plaintiff prays judgment for the possession of said property and the recovery of same and forty dollars damage for the taking and detention of the same and all injuries thereto.”

RfnPgf:petitio.1),iad' dence.lon Objection was made at the trial to any evidence in plaintiff’s behalf on the ground that the petition was too indefinite in description. It would have been better if the petition had put some descriptive mark on the property whereby it might be identified from other property of like kind. It might have stated that it was held under a certain execution; or, that it was located at a certain place; or, some other specification of identification. But no demurrer was filed thereto and we deem the objection urged to have been waived by the answer. It is true that if the petition was so defective as not to state facts sufficient to constitute a cause of action, the defect would not have been waived by the answer. But in our opinion it was not so defective as that.

After considering this and other points suggested, we are of the opinion that the judgment should be affirmed.

All concur.