Updyke v. Wheeler

Ellison, J.

This is an action of replevin instituted in the circuit court of Jasper county. The defendant’s answer was a general denial, and, as a further defense, *684 alleged that he was constable of Marion township, in said county, and, as such, he had levied upon and was holding the property, by virtue of a writ of attachment issued by a justice of the peace in said county in the cause of “John B. Cole and Stephen B. Cox, plaintiffs v. J. W. Shepard, defendant.” The cause for attachment, as stated in the affidavit, was that “the defendant, J. W. Shepard, has disposed of the crop grown by him as tenant of the plaintiffs on the following described land,” etc. “And that defendant is about to remove from the state of Missouri with intent to change his domicile.”

The writ of attachment was issued and executed on Sunday, and was therefore void, and affords no justification to the officer. Section 1054, Revised Statutes, authorizes the issuance and service of writs on Sunday in cases of attachments “where a debtor is about fraudulently to secrete or remove his effects.” But the affidavit should so state, in order to authorize the issuance or service of the writ.

Here, the affidavit is not that the defendant is about to secrete or remove his property, but that he has disposed of it. Section 4039, Revised Statutes, does not relieve defendant; for that section only authorizes the officer to serve a writ of attachment in a like case provided for in section 1054. We have been cited to State ex rel. Lemon v. Rucker, 19 Mo. App. 587 , but we think it has no application to the case at bar.

II. Notwithstanding defendant has no right or authority to keep possession of the property, it does not follow that plaintiff is necessarily entitled to recover. She must show property, general or special, in herself. It is true that in the absence of other evidence, and as against a trespasser or wrong-doer, a lawful possession will support the action of replevin (Smith v. Lydick, 42 Mo. 209 ); but in this case, plaintiff was not in the possession of the property at all at the time *685 of its seizure, unless through her agent, Moss, from whom it was taken. This brings up one of the principal points in the case. Moss, who was in the actual possession of the property, was overtaken by the officer and the plaintiff in the attachment suit, a short time before dark, some four or five miles southwest of Carthage, making his way to the Indian Territory. The evidence tends to show that he left Carthage that late in the evening in order to avoid the attachment which in fact issued, and that the plaintiff in this suit instructed him to drive fast. Under these circumstances defendant offered to prove Moss’ declarations as to the ownership of the property and where he was then taking it. The trial court rejected the offer, and such action is assigned for error. There can be no doubt that from plaintiff ’ s theory, whatever relation existed between plaintiff and Moss, as to this property was as principal and agent. Moss had the property in charge for her, indeed this is necessarily her theory of the case. This being true, Moss’ declarations, at the time of the seizure of the property, should have been received in evidence as the declarations of an agent. 1 Greenleaf Ev., sec. 113.

III. The verdict of the jury included the entire property replevined. Plaintiff, as a witness at the trial, disclaimed ownership to a portion of it, and it was therefore error in the court to sustain a verdict for that portion. Spooner v. Railroad, 23 Mo. App. 403 . A verdict in replevin, involving the ownership of property consisting of a variety of articles, may be in favor of plaintiff for a part and defendant for the remainder; or, as it has been sometimes expressed, may be in favor of both parties. Wells on Replevin, sec. 744.

IY. It is next contended that, as appellant has not set out in his abstract the motion for new trial, we should treat the case as though none had been filed. I do not think this is a correct interpretation of rule 15. That rule only requires the abstract to set forth so much *686 of the record as is necessary to a full understanding of all the questions presented for decision. There is no question presented here as to there being a motion for new trial, or that it did, or did not, cover certain objections. When no question is made as to the motion or its sufficiency, we will not assume that no such motion existed from the fact that it has not been set out in the abstract.

With the concurrence of the judges,

the judgment is reversed, and the cause is remanded.