Eastin v. Joyce

SMITH, P. J. — This is an action which was commenced before a justice of the peace in which the statement is to the effect that on, etc., at, etc., defendant without leave and wrongfully entered on block (3) three in — Bryant’s addition to the town of — Bucklin, Linn county, Missouri, part of which the plaintiff was then the owner, and then and there tore down and carried away a portion of the fence bounding the south side of the said J. M. Eastin’s premises, and belonging to the said J. M. Eastin, by which acts and doings of defendant plaintiff was injured to the amount of $50, for which he asks judgment. The cause was removed by appeal into the circuit court where there was a trial resulting in judgment for plaintiff from which defendant has appealed. I. The defendant insists that the judgment should be reversed on the ground that the statement filed by the plaintiff before the justice is insufficient to support it in that it does not allege that plaintiff was in possession of the locus in quo at the time of the commission of the alleged wrongful act by the defendant. It will have been observed that while the statement does not allege that the plaintiff was in possession it does allege that he was the owner. Since the owner of land is presumed to be in possession until the contrary appears, and since the owner has constructive possession when no one else has actual possession of it, the allegation of the statement is equivalent to an allegation that plaintiff had at the time alleged the legal estate in fee in the said land and the possession of it. Bell v. Clark, 30 Mo. App. 224; Renshaw v. Lloyd, 50 Mo. 368; Ware v. Johnson, 55 Mo. 500; Brown v. Hartzell, 87 Mo. 564; Crenshaw v. Ullman, 113 Mo. 633. The statement, we therefore think, was sufficient. II. During the progress of the trial- the court permitted the plaintiff to amend his statement as to [437] the description of the locus in quo — making it more specific. The defendant thereupon filed an affidavit alleging surprise and suggesting that the amendment made a material change in plaintiff’s cause of action, and that he could not proceed with the trial on account of not being able before the next term of the court to procure the attendance of such witnesses as were required to sustain his defense to the amended cause of action, etc. The court declined to continue the cause and its action in so doing is complained of as error. We can not discover that there was any such material change in the cause of action stated as entitled defendant, on the showing made in his affidavit of surprise, to a continuance. This was a matter very much within the discretion of the trial court, and unless we were satisfied, as we are not, that it committed an abuse of its discretion in refusing the continuance, we would not feel authorized to reverse the judgment on any such ground. Keltenbaugh v. Railway, 34 Mo. App. 147; State v. Sayers, 58 Mo. 585; Bartholow v. Campbell, 56 Mo. 117. III. It is next contended that as it is disclosed by the evidence that plaintiff and one Mrs. Howard owned as tenants in common the block whereon the fence was situate which was tom down and removed by defendant there could be no recovery by the plaintiff without joining his said co-tenant with him as a co-plaintiff in the action. But this objection was first raised by an instruction requested by defendant. After the parties had gone to trial it was then too late to raise it. Had it been timely made the plaintiff no doubt would, before proceeding further, have obtained leave to file an amended statement joining with him his co-tenant (R. S. 1889, sec. 6225; House v. Duncan, 50 Mo. 453) and thus secured a final disposition of the whole case on the merits. The defendant having failed to raise the objection of defect of parties before going to trial must be [438] assumed to have waived the defect. Thompson v. Railway, 80 Mo. 521; Van Hoozier v. Railway, 70 Mo. 145; Stilwell v. Glascock, 47 Mo. App. 557; State ex rel. v. True, 20 Mo. App. 176. The instructions given for plaintiff authorized a recovery for the reasonable value of plaintiff’s undivided one-half interest in the fence removed by the defendant while those refused for defendant declared that the plaintiff could not recover for such undivided half interest. There was no error in the action of the court in the giving of the one or in the refusing of the other. The judgment will be affirmed. A1 concur.