Dorton v. Burks

GOODE, J. This is an action of replevin instituted by respondent Dorton against appellant Burks,, marshal of the city of Farmington, and against the city of Farmington itself, to recover possession of a cow which had been taken up by the marshal while straying inside the city limits and placed in the city pound by virtue of an ordinance authorizing that action. The cow had strayed once before into the city limits and had been impounded, on which occasion Dorton had paid the costs of her restraint, whereupon she was restored to him. She strayed again during the latter part of December, 1900, and being found inside the city, was taken up by Burks, the marshal, about the first of January, and Dorton notified. Instead of paying the costs this time, Dorton demanded that the cow be delivered to him forthwith, declining to pay anything. Burks offered to release her if Dorton would pay the expense of taking her up, but instead of doing so the latter instituted an action to recover possession and succeeded in obtaining a verdict in the court below. > Farmington is a city of the fourth class, and this case is in no material respect different from Jeans v. Morrison, 99 Mo. App. (St. L.) 228, or two other-cases which were formerly decided by this court. Sherrell v. Murray, 49 Mo. App. 233; McVey v. Barker, 92 Mo. App. 498. [167] The court instructed the jury on the theory that the city of Farmington had no right to impound the animal and hold her until the expense of her detention was paid unless she escaped from the farm of the respondent (some four miles from the city.) through his carelessness. Such is not the law. An owner may not be liable for penalties prescribed by an ordinance for allowing stock to run at large inside the limits of a city, unless he is guilty of some negligence; but a city of the fourth class, under its charter power, has the right to take up and impound stray animals when found within its borders whether they escaped by the owner’s negligence or not. McVey v. Barker, supra. The defense to this action was complete and plaintiff was not entitled to recover possession of his cow until he paid the reasonable cost of impounding and keeping her. The ordinance of the city of Farmington which directs the sale of impounded stock, calls for a very short notice of the date of sale and does not provide for an order of sale by the police judge or any other tribunal. There might be some question whether said ordinance is reasonable as to the notice of sale and proceedings anterior thereto if there had been a sale of the animal. That point, however, is not involved on this appeal because no sale took place, as Dorton instituted his replevin suit while the cow was still in the pound. The judgment is reversed and the cause remanded to be disposed of in conformity to this opinion. Bland, P. J., and Beyburn, J., concur.