Barley v. Cannon , 17 Mo. 595 ( 1853 )

Gamble, Judge,

delivered the opinion of the court.

1. Barley and wife allege, that the defendant, Cannon, took from Mrs. Barley’s possession, before her marriage, a wagon, which was her property, and that he neither returned it nor paid for it. The defendant answered, that he was constable of Hurricane township, in Lincoln county, and had in his hands an execution against one Money, and that he levied it upon the wagon, then in the possession of Money; that the plaintiff, Mrs. Barley, claimed the wagon and appointed a day for the trial of the claim, and by the consent of the parties the trial was postponed to a day agreed upon, before which, Money, the defendant in the execution, died, and he (Cannon) then returned the execution to the justice ; that since the return, the administrator o£ Money had the possession of the wagon and had inventoried it as property of the estate. The answer, on the motion of the plaintiffs, was stricken put.

The answer admits the taking, and does not deny that the property belonged to the plaintiffs. .It does not even deny, except by inference, that it was in the possession of the plaintiffs. If he could not, on oath, positively deny that the property belonged to Mrs. Barley, and was'really without information upon that question, he could have so framed his answer as to put that fact in issue. But the answer is so drawn, that the defendant’s case is, in substance, that, as constable, he levied an execution which issued against Money, on property which belonged to the present Mrs. Barley. Facts are stated which may be evidence that the wagon belonged to Money ; such as, his possession at the time of the levy, and the possession of the administrator after the execution was returned ; but the averment in the petition, that the property belonged to Mrs. Barley, is the averment which was to be answered, either specifically or by denying knowledge sufficient to form a belief.

The answer was rightly stricken out, and the judgment is affirmed.