Fergusson v. Comfort

• Citation: 184 S.W. 1192,194 Mo. App. 423
• Decision Date: 04 April 1916
• Docket Number: No. 12687.,12687.
• Parties: FERGUSSON v. COMFORT et al.
• Court: Court of Appeal of Missouri (US)

184 S.W. 1192

194 Mo. App. 423

FERGUSSON v. COMFORT et al.

No. 12687.

St. Louis Court of Appeals. Missouri.

April 4, 1916.

Rehearing Denied April 18, 1916.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

"To be officially published."

Replevin by Ella M. Fergusson against Charles D. Comfort and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Zachritz & Zachritz and Harmon J. Bliss, all of St. Louis, for appellant. Wm. F. Smith and Henry Higginbotham, both of St. Louis, for respondents.

ALLEN, J.

This is an action in replevin. The trial below resulted in a verdict and judgment in favor of the defendants, and plaintiff brought the case here by appeal. We transferred the cause to the Supreme Court upon the theory that the amount in dispute on appeal was beyond our jurisdiction. See Ferguson v. Comfort, 159 Mo. App. 30, 139 S. W. 218. But the Supreme Court held otherwise and retransferred it to this court. See Ferguson v. Comfort, 264 Mo. 274, 174 S. W. 411.

In May, 1907, one Charles D. Comfort, one of the defendants herein, recovered a judgment against one John W. Baker and another in the circuit court of the city of St. Louis, for the sum of $5,132.25 and costs. Execution, issued upon this judgment, was placed in the hands of defendant Nolte, then sheriff of the city of St. Louis, and by him levied upon certain household property located upon the premises occupied by Baker and his wife, Ella M. Baker, in the city of St. Louis. Thereupon, and prior to the removal of the property from the premises aforesaid, Ella M. Baker, the plaintiff herein — who has since married one Fergusson — filed with defendant Nolte, as sheriff, a third party claim to the property so levied upon, averring the value thereof to be $6,000. Thereupon Comfort, the execution creditor, gave an indemnifying bond in the sum of $12,000, as provided by law; and the defendant sheriff was proceeding to execute the writ in his hands when plaintiff instituted this action in replevin. Upon the execution and delivery by plaintiff of a replevin bond to the coroner, that officer took possession of the property under the writ of replevin and delivered the possession thereof to plaintiff. The property was never, in fact, removed from plaintiff's premises.

Both in her petition and in her affidavit annexed thereto, plaintiff stated that the property was of the value of $6,000. The separate answers of defendants Nolte and Comfort admit this to the value thereof.

Upon the trial plaintiff undertook to testify as to the circumstances under which she signed the affidavit annexed to the petition, but this testimony was excluded. Witnesses for plaintiff, however, were permitted to give testimony relative to the value of the property from which it appeared that the value thereof at the time of the trial was about $1,450.

In submitting the cause to the jury, the court refused certain instructions requested by plaintiff and gave three instructions offered by defendants. The first of these directed a verdict for defendant Comfort. The second virtually directed a verdict for defendant Nolte, for it told the jury that if they found that prior to the institution of this action plaintiff filed with the defendant sheriff the third party claim shown in evidence, and thereupon the sheriff took from defendant Comfort the indemnifying bond read in evidence, then plaintiff could not recover.

The third instruction for defendant told the jury, in substance, that if they found a verdict for defendants to assess in favor of defendant Nolte, and state in the verdict, the present value of the property and the damages, if any, sustained by said defendant by reason of the taking and detention. And the instruction told the jury that it was admitted by the pleadings that the value of the property at the time of the institution of the suit was $6,000, and that if the jury found that any depreciation in the value thereof had occurred between the date of the seizure and the day of trial then, in assessing its present value, to deduct the amount of such depreciation from $6,000; but that in such case the amount of the depreciation, if any, should be included in the damages, if any, that the jury might find to have been sustained by defendant Nolte by reason of the taking and detention; but that if the jury found that the property had suffered no depreciation between the time of the seizure and the trial, then to assess the present value thereof at $6,000, and the damages for the taking and detention at one cent.

Under these instructions, the jury returned a verdict for defendants for the possession of the property, assessing the value thereof at $6,000, with one cent damages for the taking and detention thereof.

The action could not be maintained against Comfort, who was not in possession of the property at the time of the institution of the suit. And plaintiff's learned counsel concede that having elected to proceed under the "Sheriffs and Marshals Act," applicable to the city of St. Louis (see Rev. Stat. 1899, pp. 2550-2553), and having filed her third party claim thereunder, and an indemnifying bond having been duly given by the execution creditor, plaintiff could not maintain an action of replevin against the sheriff for possession of the property; that her remedy was upon the indemnifying bond (see Dodd v. Thomas, 69 Mo. 364; Railroad Company v. Castello, 30 Mo. 124); and that the court committed no error in instructing the jury accordingly. However, plaintiff complains of the action of the trial court in instructing the jury to the effect that the value of the property as stated in the petition and affidavit was conclusive upon the plaintiff. This is the important question involved in the appeal.

It is true, as respondent asserts, that one is ordinarily bound by the allegations of his pleading. See Railroad v. Iron Works Co., 117 Mo. App. loc. cit. 164, 94 S. W. 726, and cases cited. But the action of replevin is sui generis, and the application of this rule to the present case may well be doubted. There is ample authority for holding that in any event the allegation of value in a petition in an action of replevin is to be regarded as a mere matter of form in pleading (see Bailey v. Ellis, 21 Ark. 488; Hawkins v. Johnson, 3 Black [Ind.] 46; 18 Enc. Pl. & Pr. 541; Wells on Replevin [2d Ed.] § 680); though in some jurisdictions the allegation of value appears to be held material (see 34 Cyc. pp. 1472, 1473). Our statute requires the value to be stated in the affidavit. Section 2637, Rev. Stat. 1909. This serves to fix the amount of the replevin or the forthcoming bond, and is a necessary element of the affidavit. But we take it that it is not material that the petition allege the value. While this by no means concludes the matter before us, we are constrained to hold that the value stated in both the affidavit and petition herein should not be regarded as conclusive on the question of the value of the property at the time of the trial.

It is undoubtedly the law in this state that the value — which is not the real issue in this action, and is assessed only for the purposes of an alternate judgment — is to be assessed as of the date of the trial. See Richey v. Burnes, 83 Mo. 362; Hinchey v. Koch, 42 Mo. App. 230; Kendall Boot & Shoe Co. v. Bain, 46 Mo. App. loc. cit. 595, 596; Jennings v. Sparkman, 48 Mo. App. loc. cit. 252; Chemical Co. v. Nickells, 66 Mo. App. loc. cit. 686; Bradley v. Campbell, 132 Mo. App. loc. cit. 80, 111 S. W. 514.

The value stated in the affidavit and petition is at most an admission of the value at the time of the institution of the suit. It is true that if — as appears to have been conceded on the trial of this cause — there is no appreciable depreciation in the property between the time of the seizure and the day of trial, it may seem proper to give full effect to such admission to fix the value at the time of trial. But we think that to give effect to the intent and spirit of the statute, and secure a just and fair alternative judgment thereunder, nothing short of an unequivocal admission of the value at the time of the trial...