Falloon v. Fenton

FARRINGTON, J. On April 18, 1910', plaintiff {respondent) recovered a judgment against the defendant (appellant) in a justice’s court in Crawford county for the sum of one dollar on a cause of action stated as follows: ‘‘Plaintiff states that on or about the 18th day of April, 1909, and at various and divers other times since, the defendant, without leave, wrongfully entered on the east one-half of lot 6, of the northwest quarter of section 4, township 39, range 2, west -of Crawford county, Missouri, of which the plaintiff was then the legal owner and then and there cut timber to the value of fifty dollars and carried it away, by which acts and doings of defendant plaintiff was damaged to the amount of one hundred and twenty-five dollars, for which plaintiff asks judgment under section 4572-, Revised Statutes 1899.” From that judgment the defendant appealed to the circuit court'where after two mistrials the plaintiff again recovered judgment for one dollar, and it is from this that defendant appeals.. [97] In the motion for a new trial the only ground stated is as follows: “Because the verdict of the jury is not supported by the law and the evidence and the weight of the evidence.” There is substantial competent evidence in the rec-ord before us tending to support the following statement of facts: Plaintiff and defendant are adjoining landowners, their’farms being divided by a township line, plaintiff owning the land north and defendant owning the land south of such line. The defendant cut trees which the evidence shows were worth from one to five dollars in value. There is no controversy thus far. The plaintiff contends that such trees were south of the line and therefore on his land, and the defendant claims that his acts were done north of the line and therefore on his land. The plaintiff-showed by John Smith,. the county surveyor at the time of the trial, that he had run the line in question several times and that the trees cut were south of the line which he established as the township line, the same being the boundary line between the parties. Other witnesses swore that the timber was cut south of the line established by John Smith. This witness (John Smith) also testified that one Griffith, - a civil engineer, in company with him run the line, which survey is referred to in the evidence as the Griffith survey, Griffith using the instrument and the witness making the notes, and that the Griffith line-at the northwest comer of plaintiff’s land was several feet south of the John Smith line, which variation was accounted for by them as due to local attractions varying the needle. • However, the defendant admits that he cut some timber south of the Griffith line. The defendant, .in order to establish that the timber cut was north of the line, introduced one G. L. W. Smith, an ex-county surveyor who had made several surveys of this line, the first one having been made twenty-four years be [98] fore the trial, and the others after the controversy between the parties had waxed warm. His testimony tended to show that the township line, which is the dividing line, is several feet south of the place where the timber was cut. The defendant swore that he helped (carried the chain) when three old surveys were made many years before the time of the trial, the first one being more than forty years ago, and that he remembers that all four of the surveys (including that of Of. L. W. Smith) placed the line in question south of the place where he cut the timber. Enough has been said to show that the only issue is as to which side of the boundary line the timber was that was cut. If on the south side, the defendant committed a trespass and is liable in damages to' the plaintiff for the value of the timber destroyed. Two juries have passed on this question of fact adversely to the defendant, and from what has been said, it is apparent that such finding is supported by substantial evidence. This point might have been disposed of on the ground that the motion for a new trial was not sufficiently definite except on the assignment that the verdict was against the weight of the evidence. [State v. Scott, 214 Mo. 257, 261, 113 S. W. 1069.] That ease, together with many more lay down the rule that an appellate court will not interfere with a judgment on a ground charging that it is against the weight of the evidence unless it is clearly shown that there was an abuse of discretion on the part of the trial judge in refusing to set aside the verdict. The reason for such rule is too well known to the bar to justify repetition. The complaint, hereinbefore set out, shows that it was sufficient to advise the defendant that he had wrongfully entered upon plaintiff’s land and committed a trespass thereon to the damage of the plaintiff by cutting plaintiff’s timber — enough to meet all the re [99] quirements of a complaint in a justice court. [Frederick v. Bruckner, 124 Mo. App. 31, 101 S. W. 619; Great Western Printing Co. v. Belcher, 127 Mo. App. 133, 104 S. W. 894.] The defendant at no time prior to the rendition of the verdict questioned the sufficiency or form of the complaint, and any defects not vital were cured after verdict. It does aver sufficient facts to constitute a cause of action at common law. [Hewitt v. Harvey, 46 Mo. 368; O’Bannon v. Railroad, 111 Mo. App. 202, 85 S. W. 603; Pitt v. Daniel, 82 Mo. App. 168; O’Bannon v. Railway Co., 106 Mo. App. 316, 80 S. W. 321; Mishler Lumber Co. v. Craig, 112 Mo. App. 454, 87 S. W. 41.] And as the instruction given (about which no complaint appears in the motion for a new trial) limited the amount of recovery to not more than five dollars, there is no cause of complaint in this court. All the penalty under the section of the statute named in the complaint was eliminated by the instruction given. It is mifortunate that over so paltry a sum as one dollar neighbors should quarrel and air-their troubles in the courts, thereby piling up costs many times in excess of the amount in controversy. Like many others, this case was manifestly contested because of bad feeling existing between the parties. The trial judge who rendered the judgment heard the evidence in this controversy three times, and doubtless decided, as we have, that where litigants chance their rights in the hands of their countrymen to decide questions of fact, they must abide by the finding where there is, as there is in this case, substantial evidence to support it. The-judgment is affirmed. Robertson, P. J., and Sturgis, J.}, concur.