Clinton v. Stovall , 45 Mo. App. 642 ( 1891 )

Gill, J.

— This is an action of replevin, petition ¡ being in common form, plaintiff giving bond and possession of the property delivered to him. Defendant’s-answer is as follows, omitting the caption :

“ Now comes defendant, and, for answer to plaintiff’s cause of action, denies every allegation therein-, contained. Further answering he says that he has been damaged by the reason of the detention of said property by plaintiff, in being out of the use of the same in-making crops, and in time spent in defending this suit, in the sum of $100, for which and the return of said, property he prays. G. S. Hoss,

“Attorney.”

The cause was tried by a jury and the following verdict was rendered :

“We, the jury, find the issues for the defendant Stovall, that he is entitled to the possession of the property in question.

“Foreman C. Córrele.”

Thereupon the following judgment entry was made by the court: “It is, therefore, considered and adjudged by the court that the plaintiff and his securities on the replevin bond, to-wit, G. N. Guthrie and C. A. Yater, return to the said defendant the property taken from him by the sheriff, and described in the writ of replevin as follows, to-wit: one iron gray mare, age four years, with sucking mule colt; onebaymare, age three years; onetwohorse Nevada wagon; one one-half Jersey heifer one year old and one red bull, age three years, or, that they, the said plaintiff and G. N. Guthrie and C. A. Yater, pay to the defendant the sum of $285, the value of said property, at the election of said defendant, and that defendant recover his costs in this behalf expended, and that execution issue.” From, this judgment plaintiff appealed.

I. The errors here are quite obvious. The statute requires in cases of this kind, where the plaintiff in replevin fails in his suit, and has the property in possession, that the court or jury assess the value thereof, etc. R. S. 1889, sec. 7489. This, the jury here neglected to do. However the court, very strangely, entered up a judgment for defendant for the return of the property, or for $285 (said to be the value of the property), at the election of defendant, though the jury fixed no valne. This was clearly erroneous. State ex rel. v. Dunn, 60 Mo. 64; Robbins v. Foster, 20 Mo. App. 519. The verdict did not warrant the judgment.

Again the answer is defective (if the judgment herein- was expected) for the reason that defendant does not therein claim the property. In an action of replevin, if the defendant has obtained possession of the property, the defendant must in his answer claim the same and demand a return thereof; otherwise the court cannot, upon a finding in .his favor, give judgment against the plaintiff for its value. R. S. 1889, secs. 74, 89 ; Young v. Glascock, 79 Mo. 574.

Judgment reversed and cause remanded.

All •concur.