Hall v. Bramell , 87 Mo. App. 285 ( 1901 )

ELLISON, J.

This is an action of replevin whereby plaintiff seeks to recover seven calves. Defendant is a constable and seeks to justify his possession by virtue of a writ of execution against the plaintiff, issued on a judgment in a justice of the peace court. The property was taken from the constable and delivered to the plaintiff.

We have heretofore decided that a party can not replevin property which has been taken from him under a writ of execution unless it be that such writ was void. Buis v. Cooper, 63 Mo. App. 196. Plaintiff undertakes to bring himself within the terms of that decision by showing facts which he contends render the execution aforesaid wholly invalid. Those facts are, that the execution contained a recitation of a number of items of illegal fees and costs, such as 50 cents for “use of house;” for “constable attending court, $1;” “justice holding court, $2,” and costs of a jury with fees of jurymen when there was no jury.

Giving the objection its full breadth, it amounts to this: that the execution was void and afforded no justification to the officer into whose hands it was placed for the reason that among the items of costs there were some not properly taxable in that case and some that would not be taxable in any case. We believe the objection is not well taken. The fact that illegal items of costs are found in an execution is no reason for adjudging the writ void. Such holding would make the writ wholly dependent upon the accuracy of the judgment of the justice issuing and the constable receiving it. A mistake of the justice or constable in indorsing the execution with a statement of the amount of the judgment, or of the costs, or in indorsing illegal items of cost, or in putting such indorsement at the proper place on the execution, will not render the writ void under the statute (section 4037, Revised Statutes 1899). Buis v. Cooper, 63 Mo. App. 196; Snodgrass v. Emery, 66 Mo. App. 462. There may be some parts of the statute, just referred to, which must be literally complied with before a judgment or execution thereon would be valid, but not so in the respect considered here or in the eases just cited. It was held by the St. Louis Court of Appeals that it is necessary to the validity of an execution that the judgment should be first entered in the justice’s docket. Loth v. Faconesowich, 22 Mo. App. 68; Huffman v. Sisk, 62 Mo. App. 398. That question is not involved here.

It appears that the parties to the suit before the justice stipulated, two days before the return day of the summons, October 29, 1898, that the cause should ube continued from October 29, the day set for trial, until the parties agree upon a date when the same shall be tried.” The parties never agreed upon a date and from this plaintiff argues the cause was thereby discontinued, and, therefore, the judgment subsequently rendered was void. If we should concede the result which plaintiff, gives to his proposition, y?e deny it any application here, from the fact that the justice disregarded vhe stipulation. It was not treated as of any force, for the justice continued the case until November 12, and again to November 26; having notified both parties to appear on the latter day. The justice was not bound to’ adopt a general agreement of the parties that the ease should stand continued to an indefinite period, to be terminated by them.

The foregoing shows that the plaintiff had no cause of action. But the judgment against him is nevertheless erroneous. It was for the full value of the property. He obtained possession of the property under the replevin writ, and damages were properly assessed against him in favor of defendant. But as he was the general owner of the property, and defendant had only a special interest therein, to-wit, the amount of his writ with proper costs, defendant should have been limited to that sum in the judgment rendered. Cobbey on Replevin, secs. 958, 959, 970, 971; Kerr v. Drew, 90 Mo. 147; Dilworth v. McKelvy, 30 Mo. 149; Dodd Brown & Co. v. Wilson, 26 Mo. App. 462; Hickman v. Dill, 32 Mo. App. 509; Wirt v. Dinan, 41 Mo. App. 236; Boutell v. Warne, 62 Mo. 350.

We have no means here of ascertaining just what costs should be allowed to be charged by defendant on his execution and therefore can not fix upon a sum that should be remitted from the present judgment. We will therefore reverse the judgment and remand the cause that a judgment may be entered for defendant for the amount of his writ and costs legally chargeable.

All concur.