Ewalt v. Garnett
Missouri Court of Appeals
Appeal from Lewis Circuit Court. — Hon. Charles D. Stewart, Judge. The court erroneously gave defendant’s instructions Nos. 2, 3 and 5, authorizing the jury to find for defendant on a defense not set up in the pleadings, to-wit, the defense that defendant killed the dog when he discovered it under such circumstances as to satisfactorily show that it had been recently chasing his sheep.
Read the full summary
Appeal from Lewis Circuit Court. — Hon. Charles D. Stewart, Judge. The court erroneously gave defendant’s instructions Nos. 2, 3 and 5, authorizing the jury to find for defendant on a defense not set up in the pleadings, to-wit, the defense that defendant killed the dog when he discovered it under such circumstances as to satisfactorily show that it had been recently chasing his sheep. The giving of an instruction presenting an issue or defense not raised by the pleadings, or different from that raised by the pleadings, is reversible error. Camp v. Heelan, 43 Mo. 591; Black v. Railroad, 217…
1Opinion of the CourtAllen, J.
Plaintiff, by his petition filed herein, avers that on May 12, 1910, the defendant unlawfully shot and killed a foxhound, the property of plaintiff, of the value of $100, for which sum plaintiff prays judgment.
Defendant, by his answer, admits that on the night in question he shot and killed a “hound dog” belonging to plaintiff, but denies that he unlawfully killed the same or that the dog was of the value of $100, or that plaintiff was damaged in any sum. And further answering, the defendant alleges that plaintiff’s said dog got into an enclosed pasture of defendant, “and was chasing his,…
2Cases cited2 opinions
- Reed v. GoldneckMissouri Court of Appeals · 1905
- Sims v. HallMissouri Court of Appeals · 1909
3Cited by3 opinions
- Roach v. Consolidated Forwarding Co.Missouri Court of Appeals · 1984
- Rudicile v. BarrMissouri Court of Appeals · 1915
- Burbidge v. Utah Light & Traction Co.Utah Supreme Court · 1921