Brooks v. Barth

GOODE, J. Action of replevin for some hogs. The case originated in Clark county and went on change of venue to Marion county. The defense was that the hogs were running at large in violation of the stock law which was in force in the county. Plaintiff contends the [270] stock law never had been legally adopted because notices had not been posted in three public places in each township for twenty days before the election; because the notices of the election lacked a week of being published as long as the statutes required and because the clerk had not spread the result of the election on the records of the county court. None of these contentions is supported by the proof. There was a deficiency of record proof to establish all the requisites of a valid election, as some of the documents were lost. The deficiency was made good by secondary evidence. This case was here on a former appeal and then it was expressly decided that the stock law was in force in Clark county when the hogs were taken up by the defendant. [Brooks v. Barth, 98 Mo. App. 89.] This decision was based on an admission made by the plaintiff in open court at the first trial that the law was in force. We consider that the matter passed into judgment at the first trial; and, moreover, that the evidence adduced on the second trial shows the stock law was in force. The value of the animals in controversy was comparatively small and the record shows the litigation has been carried on by the plaintiff in a spirit of vindictiveness rather than from a desire to vindicate legal rights. Judgment is affirmed. All concur.