Pierson v. Slifer , 52 Mo. App. 273 ( 1893 )

Ellison, J.

— This is an action of replevin whereby it is sought to recover the possession of a certain stock of saloon merchandise. Plaintiff recovered below on a trial before the court without a jury.

Defendant is the sheriff of Livingston county, and justifies his possession and detention of the goods by reason of several writs of attachment which he levied upon them at the suit of several creditors of one Schneider, from whom plaintiff purchased the stock. That Schneider sold to plaintiff for the fraudulent purpose of hindering his creditors, seems to be conceded; and it is so declared in defendant’s instructions. This leaves only the question whether plaintiff participated in such fraud. That question was before the trial court sitting as a jury, and has been determined in plaintiff’s favor under declarations of. law given at defendant’s instance, which were as full, liberal and complete a statement of defendant’s theory as he could reasonably ask. No declarations were asked by plaintiff, and of tbe three refused for defendant all in them which was proper had been already covered by those given. All else in them was improper. Those given declared in terms that Schneider’s purpose in selling was to defraud his creditors, and, that if plaintiff participated in this design, or knew of such intent, or knew facts sufficient to put a reasonable man on inquiry, that he could not recover. They further declared that although plaintiff had no knowledge at the time of the sale to him, yet, if he had such knowledge before paying the purchase money, he would not be protected. And, finally, that all these matters could be proven by circumstances. Certainly the defendant ought not to complain of these declarations. It is true that as a part of the consideration of the purchase plaintiff gave his note, which was not paid at the time of the attachment, but it was transferred to third parties. So the debts assumed by the plaintiff were not at the time paid, but his obligation to pay them was complete.

From a remark in defendant’s brief it appears to be asserted, though probably not intended, that, since the cause was tried by the court without a jury, we are authorized to go into the whole ease and pass upon the weight of the evidence. This we cannot do any more than we would interfere with the verdict of á jury. The court stands, by the action of the parties, as a jury. It is not for us to say whether the finding was right or wrong if there was evidence to sustain it.

The point is made ;that the finding is for two barrels of whiskey not shown to have been purchased by the plaintiff. No such point was made by the declaration given or refused, and no such point is made in the motion for new trial. "We will, therefore, not notice it. Orr v. Rode, 101 Mo. 399; Jacobsmeyer v. Poggemoeller, 47 Mo. App. 560; McNichols v. Nelson, 45 Mo. App. 446; Fox v. Young, 22 Mo. App. 386. A statement in the motion for new trial, that the verdict is against the evidence or against the weight of the evidence, is not sufficient to call the attention of the court to a complaint of excessive verdict; or to specific property among a large lot not being included in the proof.

The only matter presented which has given us any trouble was when the court refused to permit the plaintiff to be asked on cross-examination whether he “thought these whiskeys were paid for,” when he purchased them. This question being on cross-examination might probably have been followed by other matters with which it could properly connect, and thus possibly impeach plaintiff’s good faith in his purchase. But since plaintiff had already, on cross-examination, explicitly declared that he knew of no debt owing by Schneider (save those he assumed), we do not deem the refusal of the question to be a prejudicial error.

We find nothing in the record to justify us in disturbing the judgment, and it is, therefore, affirmed.

All concur.