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McVey v. Barker

M. A. McVEY v. H. L. BARKER

McVey v. Barker, 88 Mo. App. 515 (1901)
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Court
Missouri Court of Appeals · State Appellate Courts
Decided
April 23, 1901
Judges
Bond
Citations
88 Mo. App. 5151901 Mo. App. LEXIS 86
Disposition
Dismissed.
Cited by 2
Headnotes
Appeal, Premature: NO DISPOSITION OP ALL THE PANTIES. The' record failing to show a disposition of the cause as to all the parties, before the rendition of a final judgment for one of the defendants, renders the appeal prosecuted in this behalf, premature, and it must be dismissed.
Summary
Appeal from Audrain Circuit Court. — Ron. Elliott M. Hughes, Judge. STATEMENT OE THE CASE. This is an action of replevin brought against the city of Laddonia and H. L. Barker. The petition is in the usual form und alleges the unlawful caption by defendants of four horses, the property of plaintiff; asks for damages, actual, in the sum of two hundred and fifty dollars, and punitive, in the same amount. To this petition a demurrer was interposed by the city on the ground that, being one of the fourth class, an action of replevin could not be maintained against it. The court sustained this demurrer and rendered a final judgment that the defendant city go hence without day and recover costs. The record does not show what disposition was made of the cause as to Barker, the co-defendant.. Erom the final judgment in favor of the city on the demurrer, plaintiff took an appeal to this court. The horses were taken up under and by virtue of said ordinances by the defendants. Evidently the city was liable if the taking up was illegal. Perely v. Georgetown, 7 Gray, 464; Thoyer et al. v. City of Barton, 19 Pickering, 511; Moore v. Eitchburg Cas., 4 Gray, 465; BEowell v. City of Buffalo, 15 N. Y. 512; Lee v. Village of Sandy, 40 N. Y. 449; 2 Dillon on Mún. Corp., secs. 770, 771, 772;-Allison v. City of Richmond,- 51 Mo. App. 133; Howlett v. Erie, 79 Mo. App. 656. The matter of restraining stock from running at large by a municipal corporation pertains to the police power, and the wrongs complained of in the petition having been caused by the act of an officer of the city while attempting to enforce a police regulation, the maxim respondeat superior does not apply and the demurrer to the declaration, therefore, was properly sustained. Culver v. City of Streator, 130 111. 238, 22 N. E. 810.

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

Opinion of the Court — Bond

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BOND, J.

The appeal taken in this cause must be dismissed. The failure of the record, to show some disposition of the cause as to all of the parties defendant before the rendition *517 of a final judgment in favor of one of the defendants, is an insuperable obstacle to the prosecution of an appeal; for there can be only one final judgment in any case. In the one at bar, the court should have withheld the final judgment, after its ruling on the demurrer of the city until the case was ready for judgment against the other defendant, either by a dismissal as to him by plaintiff, or upon a trial, after which a single final judgment could properly have been entered, which would have embraced a finding as to all of the parties. Until that has been done, any appeal is premature. It seems from the briefs on file in this ease, that the court went outside of the allegations contained in the petition and considered the ordinances adopted by the city of Laddonia with reference to the impounding of stock as a part and parcel of the petition. As the matter is not before us for present decision, we refrain from expressing an opinion as to the ruling thus made. It would seem however, that if the petition had incorporated in itself sufficient allegations to show that in the taking of the horses by its marshal the city was exercising a function of government delegated to it hy virtue of its charter, then there could be no liability on the part of the city for'such action in a suit of replevin. Ulrich v. St. Louis, 112 Mo. 138 ; Jefferson Co. v. St. Louis Co., 113 Mo. 619 . However, the appeal in this case was clearly prematurely taken under the authority óf Sater v. Hunt, 61 Mo. App. 228 .

It is accordingly dismissed.

All concur.

How later courts describe this case

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

Cited by 2 cases

View all citing references →
1902: 11910: 119022026peak 1902 · 1

Relies on it most ⓘ

  1. Anable v. McDonald Land & Mining Co.128 S.W. 38 (Mo. Ct. App. 1910)
  2. McVey v. Barker92 Mo. App. 498 (1902)

Most recent

  1. Anable v. McDonald Land & Mining Co.128 S.W. 38 (Mo. Ct. App. 1910)
  2. McVey v. Barker92 Mo. App. 498 (1902)

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 3

DepthCaseCited by
Ulrich v. City of St. Louis, 20 S.W. 466 (Mo. 1892) 34
Sater v. Hunt, 61 Mo. App. 228 (1895) 8
Jefferson Cnty. v. St. Louis Cnty., 21 S.W. 217 (Mo. 1893) 7

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