Keller Bros. Mercantile Co. v. Holmes

COX, J. Action in replevin. Judgment for defendant against plaintiff alone — the sureties on replevin bond not being included — for return of the property and plaintiff has appealed. The property involved is a horse and buggy. The defendant Holmes is constable and had levied upon the property under an execution against Charles Keller. The plaintiff brought this action in the circuit court alleging in the usual way that it was entitled to the possession of the property and fixed its value at $145. The defendant Holmes answered alleging that the property was the property of Charles Keller and that judgment had been obtained against said Charles Keller by one In-graham, a codefendant in this action; that execution was issued upon said judgment; that he, as constable, had levied upon the property under this execution and was- holding it thereunder when this action was commenced. The closing part of the answer is as follows : “Defendant further states that he as such constable is entitled to the immediate and exclusive possession of the said property until such time as such judgment, execution and costs are fully paid and satisfied. Having fully answered defendant asks to be hence dismissed with his reasonable costs herein sustained. Plaintiff replied with a general denial. Plaintiff gave bond and secured possession of the property and had possession at the time of the trial. At the trial it was conceded that Charles Keller had owned the horse but plaintiff claimed to have purchased it from him before the levy of the execution. Plaintiff claimed that the buggy had never belonged to Charles. The issue tried was the question of ownership of the property and the jury found in defendant’s favor. The jury by their verdict assessed the value of the property as alleged in plaintiffs’ petition but defendant- immediately elected to take the property and judgment was entered against plaintiff for a return of the property to defendant. [153] Appellant insists that the- answer of defendant does not ask a return of the property as required by the statute and for that reason the court could not adjudge its return. The statute relied upon is section 2647, Revised Statutes 1909, which is as follows: “If the plaintiff fail to prosecute his action with effect and without delay and shall have the property in his possession and the defendant in his answer claims the same and demands a return thereof, the court or a jury may assess the value of the property taken and the damages for taking and detaining the same. . . .” Section 2648 provides that in such ease judgment shall be against the plaintiff and his sureties for a return of the property ox to pay the value thereof at the election of defendant. These sections apply to actions begun in the circuit court. Under these sections of the statute it has been uniformly held that in order to entitle defendant to an assessment of the value of the property and the right to an election to take the value instead of the property the defendant must in his answer claim the property and demand a return thereof as provided in section 2647. . [Fowler v. Carr, 55 Mo. App. 145; Chemical Co. v. Nickells, 66 Mo. App. 678; Young v. Glasscock, 79 Mo. 574; Cable v. Duke, 208 Mo. 557, 106 S. W. 643.] Prior to 1860 what is now section 2647 required the court or jury to assess the value of the property and damages for its detention in all cases in which plaintiff had taken possession and the finding was in defendant’s favor. At that time what is now section 2648 was in force in its present form, Revised Statutes 1855, page 1245, section 12, and no amendment was made thereto. The general rule is that under a general denial, a finding in defendant’s favor will authorize a judgment for the return of the property to defendant if the evidence shows him entitled thereto, and especially is this true, if the answer alleges ownership in defend [154] ant or a third party under whom he holds, although not coupled with a prayer for the return of the property. [Cobbe on Replevin, secs. 782, 1111, and 1112; Salter v. Southerland (Mich.), 60 N. E. 405; Timp v. Dockham, 32 Wis. 146; Strett v. Morgan (Kan.), 67 Pac. 448; Wester v. Long (Kan.), 66 Pac. 1032.] This same rule has been recognized in this state also since the amendment of our statute in 1860 and judgments similar to this one upheld when the answer did not contain a formal demand for the return of the property. [Puller v. Thomas, 36 Mo. App. 105; Cartmell Mach. Co. v. Sikes, 83 Mo. App. 565; Anthony v. Carp, 90 Mo. App. 307.] Our conclusion is that the amendment of the statute in I8601 was not intended to interfere with the right of defendant as it existed prior thereto to a judgment for a return of the property upon a finding in his favor should the evidence in the case show him entitled thereto. • But the change in the statute was made for the purpose of cutting off his right to have the value of the property assessed and then elect to take the value in lieu of the property, should he so desire, unless he should conform his answer to the requirement of the statute. We are further of the opinion that the answer in this case was in substantial compliance with the statute. It pleads all the facts showing the nature of defendant’s interest in the property and asserts that he is “ entitled to the immediate and exclusive possession of said property.” When the facts showing defendant’s right to retain possession are pleaded as a defense to plaintiff’s claim this is equivalent to a demand for its return. [Pico v. Pico, 56 Cal. 453.] Since defendant Holmes elected to take the property before judgment and judgment was entered accordingly, the question of the right or duty of the jury to assess the value is eliminated and we have no hesitancy in holding that under the pleadings and the evidence in this case the judgment rendered was author [155] ized as to defendant Holmes and it will, therefore, be affirmed as to him. Defendant Ingraham filed only a general'denial and claimed no right to the possession of the property and as to him the judgment will he modified and judgment in his favor entered in this court for costs only. All concur.