14 S.W. 940 (Mo. 1890), Straus v. Rothan

Citation:14 S.W. 940, 102 Mo. 261
Opinion Judge:Brace, J.
Party Name:Straus, Appellant, v. Rothan et al
Attorney:Fred. Wislizenus for appellant. Mills & Flitcraft and Geo. R. Lockwood for respondents.
Case Date:December 22, 1890
Court:Supreme Court of Missouri
 
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Page 940

14 S.W. 940 (Mo. 1890)

102 Mo. 261

Straus, Appellant,

v.

Rothan et al

Supreme Court of Missouri

December 22, 1890

Certified from St. Louis Court of Appeals.

Affirmed.

Fred. Wislizenus for appellant.

(1) Revised Statutes, 1879, section 2353, does not create a vendor's lien. Norris v. Brunswick, 73 Mo. 256; Haworth v. Franklin, 74 Mo. 106. The lien theory rests wholly on a dictum in Parker v. Rodes, 79 Mo. 91. (2) Even if a vendor has a lien under this statute it does not follow that it can be exercised under the circumstances of this case. Here the special creditors have no judgment and, of course, no execution. Their right vests merely on an attachment subsequent to that of appellant. Section 2353 gives the vendor this right, whatever it be, on judgment and execution, not on attachment prior to any judgment.

Mills & Flitcraft and Geo. R. Lockwood for respondents.

The vendor of personal property may, under section 4914, Revised Statutes, 1889 (R. S. 1879, sec. 2353), seize such property by attachment and subject the same to the satisfaction of his judgment and execution when obtained, to the exclusion of a general creditor, although the attachment of such general creditor may be prior in point of time. Parker v. Rodes, 79 Mo. 191; State to use v. Mason, 96 Mo. 127; Mill Co. v. Turner, 23 Mo.App. 103; State to use v. Orahood, 27 Mo.App. 496; O'Connor v. Alexe, 28 Mo.App. 184; Boyd v. Furn. Co., 38 Mo.App. 210.

OPINION

[102 Mo. 262] Brace, J.

-- This cause is certified here by the St. Louis court of appeals, on its judgment reversing the judgment of the circuit court of St. Louis, overruling appellant's motion to require the sheriff to pay appellant the proceeds of sales made by him under attachments against Rothan & Co.

The facts of the case are thus stated in the opinion of the court of appeals: "The plaintiff sued out an attachment against Isaac L. Rothan and Isaac Rothan, Jr., composing the mercantile firm of Rothan & Co., on various grounds, which need not be stated, and caused the same to be levied on stock and fixtures of the defendants on the thirtieth of August, 1888. Soon thereafter, several other creditors of Rothan & Co. sued out attachments against them, and pointed out to the sheriff specific property on which this plaintiff's attachment had already been levied, and directed the sheriff to make special levies on such property, as being property which these attaching creditors had sold to Rothan & Co., and which had not been paid for by the latter. The property was subsequently sold by the sheriff, and the plaintiff, having

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prosecuted his demand to judgment, made a motion for a rule on the sheriff requiring him to pay over the proceeds of the sale to the plaintiff, as a prior attaching creditor. This motion was resisted by the subsequent attaching creditors, by whose direction the sheriff had made the special levies for unpaid purchase money, and on the hearing of it they offered to show, in substance, that the goods, on which the special levies had been made by their direction, were part of a large lot of goods which had been sold [102 Mo. 263] by them to Rothan & Co., and that the purchase price therefor had not been paid. The court admitted this evidence, and the plaintiff excepted. Thereupon the court overruled the plaintiff's motion, deciding that the special levies for unpaid purchase money, though subsequent in date to the plaintiff's levy, were superior to it in right."

The determination of the issue hangs upon the proper interpretation of section 2353, Revised Statutes, 1879, page 393, which reads as follows: "Personal property shall in all cases be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall in no case be exempt from...

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