Robbins v. Foster

Philips, P. J. This is an action on a replevin bond. The appellant, Foster, instituted an action in replevinagainst the respondent, Robbins, in a justice’s court, for the recovery of one horse. Under the writ and delivery bond executed by said Foster, the constable took possession of the horse and turned him over to Foster. On a trial of the issues therein, before a jury, the jury returned the following verdict: £!We, the jury, find the issues for the defendant.” On this verdict the justice entered up judgment that the defendant, Robbins, recover possession of the horse, and for the restitution of the same to Robbins. Before the expiration of the ten days allowed by statute to the plaintiff to take an appeal from said judgment, the justice issued an order to the constable to take-said horse and deliver him to Robbins, which order the constable- executed on the same day of the rendition of said judgment. On motion of Foster, before the said justice, claiming that the ten days aforesaid had not expired, and that he intended to appeal, the justice vacated said order of delivery and the horse was returned by the constable to Foster. At the expiration of the ten days, Foster, having failed to take an appeal, refused to surrender the horse, claiming that he belonged to his minor son. Thereupon this action was instituted on the delivery bond against Foster and his surety. On a trial had before the circuit court, the court found the issues for the plaintiff, and defendants have brought the case, on appeal, to this court. I. The first objection made to the judgment is, that the jury in their verdict, in the case of Foster v. Robbins, on the trial of the issues in the replevin suit, [523] did not find the value of the horse, nor assess any damages for his detention, etc., nor did they find the-interest of the plaintiff in the horse. This doubtless-was error, for which plaintiff had his right of appeal to have corrected. But this omission did not render the judgment void, so as to subject it to attack in a collateral proceeding. State ex rel. Johnson v. Dunn, 60 Mo. 64; Sweeney v. Lomme, 22 Wall. 208. The justice’s court had jurisdiction over the parties and the subject-matter of the action. It had jurisdiction to order the return of the property; and because it did not do more, as required by the statute, did not make void what it did do. II. The taking of the property by the constable- and delivering it to Robbins, under the circumstances of this case, did not have the effect either to satisfy the judgment or to discharge the surety. The order of the-justice was vacated at the instance of Foster, and the-property likewise, against the consent of Robbins, was re-taken, at Foster’s direction, and returned to him. The-rule invoked by him on this appeal is never permitted by the courts to operate so as to allow the defaulting' party to take advantage of his own wrong and artifice. State ex rel. Colvin v. Six, 80 Mo. 61; Herman on Ex.,, sect. 176 ; Freeman on Ex., sect. 269. III. -Nor did the court err in refusing to hold that the defendant, Foster, could show in defence of, this action that the horse belonged to his minor son. In a direct suit on the delivery bond such defence is not tolerated. Sweeney v. Lomme, supra; Nelson v. Luchtemeyer, 49 Mo. 56 ; Wells on Replevin, sect. 450. The condition of defendants’ bond, inter alia, is for the return of the property. This they failed to perform and for this a cause of action arose on the bond. The defendant, not only failed to have the horse forthcoming, but placed him where he could not be found. It does not lie in his mouth to complain of the want of demand. Under the statute this defence can only be made available by offering in his answer [524] to make restitution. This he failed to do, but set up title in a stranger as his excuse. Sect. 1008, Rev. Stat. The judgment should be affirmed. All concur.