Carpenter v. Stearns

Ramsay, J. — Plaintiff instituted this suit, in one of the justices’ courts of Johnson county, against the defendants, in replevin for the possession of certain household furniture of the alleged value of $70.20. The ■statement and affidavit were in statutory form and on the day the writ was issued by the justice, the defendants executed and-delivered to the constable executing said writ their delivery bond for the retention of said ■furniture, which delivery bond was in form prescribed by statute, and which, together with replevin writ, were properly returned by the constable. Plaintiff recovered a judgment in the justice’s court and defendants appealed to the circuit court. On trial anew in the circuit court plaintiff introduced evidence tending to show that the furniture in question was her separate property, she being a married woman, and that said property had been purchased with her separate money and means, and that plaintiff was, at the time of the institution of her suit, the owner of and entitled to the possession of it. Plaintiff offered to read in evidence the delivery bond executed by the defendants and the constable’s return. The defendant objected to its introduction, on the ground that it was irrelevant, immaterial, and had no tendency to show that defendants ever were in possession of the property in suit, and the court sustained their objection. The evidence of the constable was to the effect that the property in question had been levied upon by him under a certain writ of attachment issued in a suit wherein the defendants in this suit were plaintiffs and one W. H. Carpenter, husband of the plaintiff herein, was the defendant, and that said property was not in the “actual manual” possession of defendants until a day subsequent to the commencement of this suit. Other evidence touching value, damage, etc., was [137] introduced. At close of plaintiff’s evidence; at instance of the defendants, the court gave this instruction: “The court instructs the jury that under the pleadings and evidence in this case they will find the issues for the defendants.” Whereupon plaintiff took a non-suit with leave to set the same aside, and after an unsuccessful effort to set her non-suit aside, the cause is brought to this court. We are of the opinion that the court committed error in not allowing defendants’ delivery bond to be read in evidence, and in taking the case from the jury. The very object and purpose of the statute under which this bond was executed is to enable defendants in replevin suits to retain possession of the property until questions of ownership and right to possession can be determined by suit. The defendants, having availed themselves of the benefits of this statute, are estopped from showing or claiming at trial that the property described in their delivery bond was never in their possession. Schnaider Brewing Co. v. Niederweiser, 28 Mo. App. 283, and cases cited. It is evident from an inspection of the record that the case turned below upon the point of defendants’ possession at the date of the institution of this suit, the day their bond was executed. For the reasons herein stated the judgment of the lower court is reversed and the cause is remanded. All concur.