Reigert v. Voelker , 1878 Mo. App. LEXIS 77 ( 1878 )

Hayden, J.,

delivered the opinion of the court.

This is an action brought before a justice of the peace, under the act relating to claim and delivery of personal property. Judgment was given for the appellant; and in the court below the respondents moved to dismiss the case for insufficiency of the complaint, and the suit was dismissed.

Undoubtedly the statement should contain an allegation that the property is wrongfully detained by the defendant. This is not only required by the first section, but is the foundation of the action and of the issue of the delivery order by tbe justice. The second section shows on its face that the form is not to be literally followed in all cases, but is merely a general guide, and must be intelligently pursued. For instance, the plaintiff cannot in all cases swear that the property “was unlawfully taken,” or that it “ has been injured; ” and of course it was not intended that he should in all cases do so. He must adapt the forms to the facts. The two sections must be construed together. Wag. Stats. 817, sects. 1, 2 (Sess. Acts 1871-2, amending Gen. Stats. 1865, p. 703, sect. 2); Gist v. Loring, 60 Mo. 487; Crawshaw v. Wright, 5 Mo. App. 577.

As in the present case the plaintiff did not literally follow the form, he cannot claim the benefit of it as a form especially prescribed by the statute. Any variation at all implies an intelligent variation, and this was not adopted. The statement reads, as to the first part: “ Plaintiff states that he is lawfully entitled to the possession of one wagon, with shaft and tongue, of the value of $65 ; that the same was on * * * unlawfully taken and that the plaintiff’s right of action accrued within one year and is now wrongfully detained at the county aforesaid,” etc. This is neither a literal adherence to the form nor an intelligent variation from it.

As the averment was jurisdictional, the proceeding was properly dismissed. All the judges concur in affirming the judgment.