Crum v. Elliston

Smith, P. J. This was an action commenced before a justice of the peace under the statute providing for the claim and delivery of personal property, for the recovery of the possession of “ nine fat hogs, mostly black.” The statement contained all the averments required by section 2882, Revised Statutes, but neither it nor the affidavit appended to it were signed by the plaintiffs. There was a certificate of the justice of the peace following the unsigned affidavit in these words, “ Sworn and subscribed to before me by P. C. & George S. Orum, this November 15, 1886. O. J. IJoyd, justice of the peace.” When the case reached the circuit court on appeal a motion was made to dismiss it on the ground that the plaintiffs’ statement was not verified by the affidavit. The court heard evidence which showed that ik had been sworn to before the justice, but that neither the statement nor the affidavit had been signed by the plaintiffs because the justice believed the same was unnecessary and had so advised plaintiffs. The court thereupon permitted the plaintiffs to supply their omission and then overruled the motion to dismiss, and. this action of the court is made the' principal ground of the defendants’ complaint. I. In all cases of appeal from justices of the peace the circuit court, in the exercise of its original and appellate jurisdiction, is always liberal in allowing amendments to be made in the pleadings to supply any deficiency or omissions therein when by such amendment substantial justice will be promoted. R. S. secs. 2937, 3052, 3060. The exercise of this power is, however, subject- to the limitation that no. cause of action not embraced or intended to be embraced in the original statement can be added by such amendment. Sec. 3060, supra. And it seems that in cases of this kind an omission to include in the statement any one of the causes required by section 2882 cannot be supplied by [595] amendment in the circuit court. It is held that such an amendment would be substantially a new action, and that the power to allow the same is not confided to the circuit court by the statute. Gist v. Loring, 60 Mo. 487 ; Madkins v. Trice, 65 Mo. 656. But in the present case the plaintiffs’ statement is not deficient in any matter of substantive averment. The defect is formal and consists alone in the omission of the plaintiffs to sign the statement and affidavit. Under the eviclepce it was the subject of amendment nunc pro tunc. Bergesch v. Keirl, 19 Mo. 127. Such an amendment raises no question of jurisdiction. We think, therefore, that the circuit court did not err in granting permission to the plaintiffs to sign the statement and affidavit and in overruling the motion to dismiss. II. It is argued by the defendants that the description of the property, as set forth in the statement, is so vague, indefinite and uncertain that by such description it could not be identified, and for that reason no evidence should have bepn received. This specific objection does not seem to have been made in the circuit court and is here raised for the first time. It draws in question the sufficiency of the statement, and for that reason we must notice it. Objections to the insufficiency or uncertainty of description must be made by the defendant at the first available opportunity and if he omit to do so, plead to the merits and go to trial, he cannot ask the court to reverse the judgment because the description is uncertain. Wells on Replevin, sec. 185; Ruch v. Morris, 28 Pa. St. 245; Warner v. Anghenbaugh, 15 S. & R. ( Pa.) 9. While it may be doubted whether the rule in respect to mortgages allowing extrinsic evidence to aid defective description of property therein can be invoked in cases like this, still we think the description contained in the statement was sufficient to enable the officer to identify the “ nine head of fat hogs, mostly black.” In Ruch v. Morris, [596] supra, there is contained in the brief of the counsel for the defendant in error an extended citation of the English authorities as far back as the days of Lord Coke, which show that the description of the property contained in the statement in this case is good under the English precedents. III. It is contended further that the demurrer to the plaintiffs’ evidence should have been sustained because there was no evidence that the defendants were in the actual possession of the property. We do not think this contention can be sustained. The statutory averment which is required -to be made in this form,of action is, that the “property is wrongfully detained.” R. S. sec. 2887. Now it has been adjudged in this state that the action of replevin can be maintained for the recovery of specific personal property where the defendant had the property either in his possession or under his control, at the time of the commencement of the action. Davis v. Randolph, 3 Mo. App. 454 ; Haeger v. Marcus, 5 Mo. App. 565. The evidence conclusively shows that, at the time of the commencement of this suit, Elliston was sheriff, and as such officer, was, through his deputy, in the actual possession and control of the property on the premises of the defendant, Cleveland. Perceiving no error in the record and proceedings in the case, the other judges concurring, the judgment is affirmed.