State ex rel. Lilly v. Carter

92 Mo. App. 86, 1902 Mo. App. LEXIS 443

• Court: Missouri Court of Appeals
• Decided: February 4, 1902
• Status: Published

Opinion

BLAND, P. J.

The defendant, Carter, is the sheriff of Warren county. To him as such sheriff was delivered for collection an execution in favor of the Pheonix Insurance Company and against Moritz Meyer. A deputy of the sheriff, armed with the execution, proceeded to the residence of Moritz Meyer for the purpose of serving the execution. When he arrived there he found and proceeded to levy upon a lot of cattle on Moritz Meyer’s premises; among them was the animal in question, a red two-year-old bull. Before mating the levy he was notified by plaintiffs that the bull was their property. His answer to this notification was that he “would not take any man’s word for it and that the claimants' would have to make affidavit that the animal was their property or he would levy on it.” The affidavit was not made and the deputy levied upon the bull as the property of Moritz Meyer and drove it off with the other cattle that he had seized and levied upon. He kept the animal in his possession until after the sale day under the execution'when, having realized enough from the sale of the other cattle to satisfy the execution, he turned the bull over to plaintiffs who received it.

The suit is on the sheriff’s bond for the trespass in seizing and taking away the bull. The plaintiffs proved their ownership to the bull and no countervailing evidence as to their •ownership of the animal was offered.

Plaintiffs offered the following instruction which the court refused to-give, to-wit:

“5. The court instructs the jury that under the pleadings and the evidence, your verdict must be for the plaintiffs.”

There was a verdict and judgment for the defendant. Plaintiffs in due time moved for a new trial which was denied them and they appealed.

Except as to the amount of damages, there is no conflict in the evidence and plaintiffs were clearly and indubitably entitled to recover nominal damages, if nothing more, and the jury should have been so instructed.

Instruction number one given for defendants, which is as follows:

“If the jury believe and find from the evidence, that the bull was found in the possession of Moritz Meyer by the sheriff and levied upon by Carter as the property of said Moritz Meyer, then there can be no recovery in the case for nominal damages unless the jury further find and believe that the bull was claimed by the plaintiffs and notice given at the time of levy. By nominal damages is meant one cent damages,” was not justified under the evidence.

The deputy, who made the levy, admitted that plaintiffs claimed the bull before it was taken from the premises of Moritz Meyer. Notice to the deputy was notice to Carter, his principal.

We perceive no error in the other instructions given for the defendant, nor was there error in refusing instructions numbered six and seven, asked by plaintiff. There is no evidence on which to base number six, and number seven is a comment on the evidence.

The judgment is reversed and the cause remanded.

Barclay and Goode, JJ., concur.