Mix, Plaintiff in Error, v. Kepner

Supreme Court of Missouri1883-10

81 Mo. 93

Summary · law.co

Holding. The judgment of the circuit court is reversed and the cause remanded because the trial court erred in denying the venue motion, failed to separately assess property value and damages as required by law, and improperly included attorney's fees in the damage award.

A plaintiff brought an action in replevin to recover possession of four hogs valued at $30 that were allegedly wrongfully held by the defendant. After the justice of the peace rendered a partial judgment for the defendant, the plaintiff appealed to circuit court. The plaintiff filed a motion for change of venue, contending that the defendant wielded undue influence over county residents and that local prejudice would prevent a fair trial. The circuit court denied the venue motion, finding the affidavit insufficient to establish a prima facie case. The court then heard the case on the merits, determined that the defendant held valid title and possession rights, and awarded judgment for the defendant in the amount of $40, comprising $20 for the property value and $20 in damages including attorney's fees.

On appeal, the court identified three errors. First, the application for change of venue substantially complied with statutory requirements and therefore should have been granted as a matter of law; the trial court lacked discretion to reject it based on dissatisfaction with the facts alleged. Second, the trial court improperly combined the assessment of property value and damages into a single figure without separately calculating each component as required. Third, attorney's fees are not recoverable as damages in replevin actions, making that portion of the award improper.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a venue motion affidavit complying with statutory requirements must be granted as a matter of law
Proper calculation of damages in replevin cases involving property depreciation
Recoverability of attorney's fees as damages in replevin actions

Procedural posture

The plaintiff appealed from a circuit court judgment rendered after the court denied his motion for change of venue and decided the replevin action on the merits in favor of the defendant.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Ewing, C.

This was a proceeding before a justice of the peace to recover possession of four hogs of tbe alleged value of $30. There was a judgment for defendant for two hogs and costs. Plaintiff appealed to the circuit court, where he filed a petition for change of venue which was overruled by the court. Plaintiff then declined to further proceed with the case, and the defendant waived a jury, submitted the case to the court upon defendant’s evidence, and the court found for the defendant, and entered up judgment as follows: “The court doth find, that the said plaintiff is not the owner of the said hogs or either of them, but that defendant is the owner of the same, and is entitled to a return of the same, the plaintiff being in possession. And that the value of said hogs is $20, and the damages for taking and detaining the same, including a reasonable attorney’s fee employed by defendant, to the sum of $20.”

On the first day of the term, the plaintiff filed his application for change of venue, verified by his affidavit as follows:

Now comes the above-named plaintiff and moves the court to grant him a change of venue of the above-entitled cause, because he believes the said defendant has an undue influence over the minds of the inhabitants of Henry county, and that the inhabitants of said Henry county are so prejudiced against plaintiff that he cannot have a fair trial in said Henry county, and that the knowledge of such prejudice has come to affiant since the last term of this court.

Wherefore, he asks a change of venue to some other county, where like cause does not exist.

J. W. Mix,

By M. A. Eyke, Attorney.

J. W. Mix, being duly sworn, on his oath, says that the facts stated in the above application for change of venue are tiue, as he verily believes, and that, for the reasons above stated, he believes he cannot have a fair and impartial trial of this cause in Henry county.

J. W. Mix.

This application was overruled upon the ground “ that the affidavit did not make a prima facie case, and did not satisfy the court of the facts therein stated, and the court refused to grant a change of venue for that reason alone.” Thereupon the plaintiff appealed to this court.

I. In Corpenny v. City of Sedalia, 57 Mo. 88, it is said? “ the application, when it complies with the provisions of the statute, both as to its recitals and verifications, must be regarded as sufficient. "When this is done, a prima facie basis at least is laid, whereon to ground the order for the change applied for. And it is not thought the statute under consideration, intended that the court should be ‘satisfied/ but in the manner above indicated.” In the case at bar, the application and verification, substantially, if not literally, complied with the requirements of the statute, and by authority of Corpenny v. Sedalia, supra, we hold the application was sufficient, and the change of venue should have been awarded.

II. _ The next question for consideration is, as to the measure of damages to be determined in this case, where the property was found to be in possession of plaintiff, but the title in the defendant, as,well as the right of possession. It must be borne in mind that there is a distinction between the value of the property to be found, and the amount of damages to be assessed. Chapman v. Kerr, 80 Mo. 158; Pope v. Jenkins, 30 Mo. 528. The value of the property and the damages for detention, etc., must be found separately. Wells on Replevin, section 610. The value of the property at the time of the assessment, is the value to be found by the jury. Chapman v. Kerr, supra. Infixing the damages, if the property has been depreciated in the hands of the plaintiff, in consequence of the replevy, or by the acts or negligence of the plaintiff, after the replevy, the jury should consider such depreciation in their estimate of damage, occasioned by the taking and detention. Chapman v. Kerr, supra; 2 Sedgwick on Damages, 428; Wells on Replevin, section 585.

III. Plaintiff in error insists that the court below erred in estimating as damages, an attorney’s fee. The better opinion seems to be, that in cases like the one at bar, counsel fees are not recoverable by way of damages. Wells on Replevin, sections 576 and 577; 1 Sedgwick on Damages, top pp. 173 to 185.

The judgment of the circuit court is reversed, and the cause remanded.

All concur.