Legal Opinion

Berghoff v. Heckwolf

Supreme Court of Missouri

Decided March 15, 1858PublishedCited by 20 opinions

Error to St. Louis Court of Common Pleas. This was an. action on a bond executed by defendants in a suit, under article 8 of the practice act of 1849, for the possession of a horse. Heckwolf and Kuhn, two of the defendants in the present suit, sued Berghoff for the possession of said bond. They gave the customary bond required by section 3 of said article 8, and the horse was given into their possession.

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Error to St. Louis Court of Common Pleas. This was an. action on a bond executed by defendants in a suit, under article 8 of the practice act of 1849, for the possession of a horse. Heckwolf and Kuhn, two of the defendants in the present suit, sued Berghoff for the possession of said bond. They gave the customary bond required by section 3 of said article 8, and the horse was given into their possession. When the cause came on for trial said plaintiffs voluntarily took a nonsuit. No judgment for the return of the property apjjears to have been rendered, and no damages for the detention of the…

1Opinion of the CourtRichardson, Judge

The plaintiff in a replevin suit can not, by a discontinuance of the action, or by suffering a nonsuit, prevent a judgment being rendered against him for damages or for the return of the property. (3 Black. Com. 149; Smith v. Winston, 10 Mo. 299; Collins v. Hough, 26 Mo. 149.) And it was decided in the case last cited that the 8th and 9th sections of the replevin act of 1845, as against the plaintiff, remained in force as a part of the machinery necessary for perfecting proceedings commenced under the act of 1849.

If, however, the plaintiff dismisses his suit and the defendant omits to have…

2Cases cited4 opinions

  1. Brown v. ParkerIndiana Supreme Court · 1840
  2. Collins v. HoughSupreme Court of Missouri · 1858
  3. Smith v. WinstonSupreme Court of Missouri · 1847
  4. Western Union Telegraph Co. v. PellsCourt of Appeals of Texas · 1883

3Cited by20 opinions

  1. Kreibohm v. YanceySupreme Court of Missouri · 1900
  2. White v. Van HoutenSupreme Court of Missouri · 1873
  3. Boom v. St. Paul Foundry & Manufacturing Co.Supreme Court of Minnesota · 1885
  4. Morrison v. YanceyMissouri Court of Appeals · 1886
  5. Cox v. SargentColorado Court of Appeals · 1897

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