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Gartside v. Nixon

Joseph Gartside v. Richard G. Nixon

Gartside v. Nixon, 43 Mo. 138 (1868)
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Court
Supreme Court of Missouri · State Highest Courts
Decided
October 15, 1868
Judges
Baker, Other
Citations
43 Mo. 138
Headnotes
1. Replevin — Evidence — Naked Possession — Tille. — "Where plaintiff’s title is denied, naked possession is not sufficient to maintain an action for the claim and delivery of personal property. The plaintiff must prove that he had a general or special property in the thing sought to he recovered.
Summary
Appeal from St. Louis Circuit Court. I. Plaintiff, in order to maintain an action for the claim and delivery of personal property, must have a general or special property in the thing sought to be recovered. A bare possession without right, or a tortious possession, is not sufficient. (Gen. Stat. 1865, p. 663, § 1; Wheat. Selw. 1208; Broadwater v. Larne, 10 Mo. 277; Gray v. Parker, 38 Mo. 160; Gibson v. Mozier, 9 Mo. 256; Irwin v. Wells, 1 Mo. 11; Harrison v. McIntosh, 1 Johns. 380.)

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Baker

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Baker, Judge,

delivered the opinion of the court.

This is a proceeding under the statute for the claim and delivery of personal property, instituted by the respondent, to recover a horse then in the possession of the appellant. The plaintiff’s title to the property is put in issue by the pleadings. At the instance of the plaintiff, the court instructed the jury that “the plaintiff claims and alleges that he and the persons under whom he claims title to the horse have had actual possession of him ever since some time in September, 1865 ; and if the jury believe the fact to be so, then the plaintiff is entitled to recover the horse, unless the jury believe from the evidence that the horse really and in fact belonged to the defendant.” This instruction is erroneous. Where the plaintiff’s title is denied, nakéd possession is not sufficient to maintain an action. It must appear that he had a right to the possession of the property. The plaintiff must prove that he had a general or special property in the horse. ( 10 Mo. 277 ; 38 Mo. 160 ; 9 Mo. 256 ; 1 Johns. 380 .)

The judgment of the Circuit Court is reversed and the cause, remanded.

The other judges concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

View all citing references →
1886–1887: 11888–1889: 11892–1893: 11894–1895: 41910–1911: 21934–1935: 118862026peak 1894 · 4

Relies on it most ⓘ

  1. Rankin v. Wyatt73 S.W.2d 764 (Mo. 1934)
  2. Andrews v. Costican30 Mo. App. 29 (1888)
  3. Draper v. Farris56 Mo. App. 417 (1894)
  4. Benedict & Burnham Manufacturing Co. v. Jones60 Mo. App. 219 (1895)
  5. Meeks v. Clear Jack Mining Co.124 S.W. 1084 (Mo. Ct. App. 1910)
  6. Scott v. Riley49 Mo. App. 251 (1892)

Most recent

  1. Rankin v. Wyatt73 S.W.2d 764 (Mo. 1934)
  2. Campbell v. Brown130 S.W. 50 (Mo. Ct. App. 1910)
  3. Meeks v. Clear Jack Mining Co.124 S.W. 1084 (Mo. Ct. App. 1910)
  4. Rosentreter v. Brady63 Mo. App. 398 (1895)
  5. Benedict & Burnham Manufacturing Co. v. Jones60 Mo. App. 219 (1895)
  6. Stone v. McNealy59 Mo. App. 396 (1894)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

DepthCaseCited by
Gray v. Parker, 38 Mo. 160 (1866) 31
Broadwater v. Darne, 10 Mo. 277 (1846) 14
Harrison v. M'Intosh, 1 Johns. 380 (N.Y. Sup. Ct. 1806) 12
Bower v. Higbee, 9 Mo. 256 (1845) 6

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