Sanders v. Brooks

• Decision Date: 01 April 1946
• Citation: 194 S.W.2d 540,239 Mo.App. 578
• Parties: Harry Sanders, v. Sydney Brooks and Clellia Brooks
• Court: Kansas Court of Appeals

194 S.W.2d 540

239 Mo.App. 578

Harry Sanders, v. Sydney Brooks and Clellia Brooks

Court of Appeals of Missouri, Kansas City

April 1, 1946

Appeal from Lafayette County Circuit Court; Hon. R. D. Johnson Judge.

Reversed and remanded.

Frank F. Catron, for appellant.

(1) Under such circumstances the farm employer was not entitled to a lien upon his farm hand's head of personal stock. Wright v. Waddell, 89 Iowa 350, 56 N.W. 650. (2) There is no such thing in the common law as an agister's lien and under the Missouri statute, any such claim to lien must be strictly construed. Stone v. Kelley, 59 Mo.App. 214. (3) Where goods in the possession of one having a law lien upon them are attached at his own suit or at his own instigation, the lien is lost. Corpus Juris, Volume 37 Liens, Section 54, page 335; Marshalltown City Nat'l Bank v. Graham, 135 Iowa 230; Whittaker v Sumner, 20 Pick (Mass.) 399; Legg v. Willard, 17 Pick (Mass.) 140; Crimson v. Barse Live Stock Com. Co., 17 Okla. 117; Lambert v. Nicklass, 42 W.Va. 527; Fern v. Wyoming, 3 Wyoming 331; Jacobs v. Latour, 5 Bing. 130, 130 Reprint 1010. (4) It is a general rule that any acts of a lien holder inconsistent with the existence of his lien, impliedly waives the lien. Corpus Juris, Volume 37, Liens, page 334. (5) And that where a lien is waived at any time, it is waived from its inception, and that a lien lost or destroyed is the same as if it never existed. Cyc., Vol. 25, Liens, p. 675; Corpus Juris, Volume 37, Liens, page 333; Pharis v. Leachman, 20 Ala. 662; Au Sable River Boom Co. v. Sanborn, 36 Mich. 358; Langsford v. Fenning, 7 S.W.2d 726; In an agister's lien case in replevin the value of the special interest should always be determined. Bank v. Snider, 25 Mo.App. 82; Varner v. Jackson, 66 Mo.App. 348; Pickett v. McCord, 62 Mo.App. 467. Where a defendant in replevin has only a special interest in the property the jury or court should assess the value of that interest, and all the interest of the parties in and to the property adjusted and determined in one suit. Dilworth v. McKelvey, 30 Mo. 149; Lewis v. Mason, 94 Mo. 551; Caldwell v. Ryan, 210 Mo. 17; Frey v. Vogel, 40 Mo. 149; Gilham v. Kerone, 45 Mo. 487; Boutell v. Warne, 62 Mo. 353; Daugherty v. Cooper, 77 Mo. 535; Implement Co. v. Dunnard, 181 App. 658; Schneider v. Johnson, 161 App. 385; Glen v. Gibbs, 92 S.W.2d 947: (6) The giving of a replevin bond and the taking of the property under writ of replevin determines nothing as to the ultimate rights of the parties to the replevin suit. Ex parte Irvine, 6 S.W.2d l. c. 601; Mohr v. Langon, 162 Mo. 474; Bingham v. Morrow 29 App. 448; Hamilton v. Clark, 25 App. 438; Zimmerman v. Downey, 66 App. 106; Freeman v. Lavenue, 99 App. 173. (7) Since 1904, in Missouri the right to present a counterclaim in a replevin suit and to have all matters affecting the property and all interest therein settled in one suit has been an established doctrine. McCormick Harvester Co. v. Hill, 104 Mo.App. 544; Thrasher Co. v. Speak, 167 Mo.App. 470; Collins v. Leather Co., 196 Mo.App. 611; Bowles v. Paulson, 105 S.W.2d 31. (8) In actions of replevin it is the trial court's right and duty to adjust all issues between the parties as shown by the pleadings and evidence concerning the property involved. McWherter v. Randall, 232 S.W. 1070; Zahner Mfg. Co. v. Harnish, 51 S.W.2d 145; National Theater Co. v. Scoville, 22 S.W.2d 68; Smith v. Tucker, 200 S.W. 707. (9) A party who fails to assert his right in and to the property in the replevin suit, or fails to appeal therefrom, loses his right to maintain a subsequent suit. Ross v. May Stern Co., 164 Mo.App. 398. The property cannot be disposed of by the defendants in a replevin suit for the property is "lis Pendens." Corpus Juris, Volume 39, Lis Pendens, page 4; Corpus Juris, Volume 38, Lis Pendens page 15; Burnham Munger Co. v. Smith, 82 Mo.App. 36; Carr v. Lewis Coal Co., 15 Mo.App. 551; Turner v. Edmonston, 109 Mo. 33. As to the parties to a replevin suit, or their grantees or privies, the property is always in custodia legis pending the determination of the suit. Mohr v. Langan, 162 Mo. 475; Western Warehouse & Storage v. Glasner, 169 Mo. 38; Ely v. Sutton, 162 S.W. 755, 177 Mo.App. 547. (10) When the property in replevin is no longer in existence, and the plaintiff or party out of possession, shows an interest therein the judgment in his behalf should sound in damages. Dillard v. McClure, 64 Mo.App. 488; Wilson v. Smith, 60 Mo.App. 469. (11) The trial Court erred in allowing the verdict of the jury to stand, over objection of plaintiff, for the reason that the verdict was not responsive to the issues of the case, nor to the admission made by defendants, in their amended answer, in that it did not apply the law applicable to the case. Tuttle v. Closter, 260 S.W. 819; Gawk v. Millovitch, 203 S.W. 1006; Agan v. Quick, 226 S.W. 601; Barnes v. Plesser, 137 Mo.App. 571; Harvey v. Stephens, 159 Mo. 486.

Blackwell & Sherman, for respondents.

(1) Defendants were entitled to agister's lien upon the hogs for corn that was fed to the hogs and for services in feeding them and caring for them. Sec. 3580, R. S. of Mo., 1939. (2) Voluntarily parting with possession of a portion of agistered animals releases the lien only as to that portion, and does not release the remaining portion from the burden of the whole lien unless it was the intention of the parties to do so. 3 Corpus Juris, page 35, "Parting with Possession." 3 Corpus Juris Secundum, page 1123, "Parting with Possession." (3) All that the general owner has to do to retake his property from anyone claiming a lien thereon is to tender the amount justly due to the lienee. Montieth v. Great Western Printing Co., 16 Mo.App. 450, l. c. 453; Anthony v. Carp, 90 Mo.App. 387, l. c. 393. (4) Where prevailing party has only a limited or special interest, it is only where the other party has obtained possession under the writ that the value of the special interest need be assessed. Smith v. Tucker, 200 S.W. 707, l. c. 708; Zahner Mfg. Co. v. Harnish et al., 51 S.W.2d 145, l. c. 146, 227 Mo.App. 287, l. c. 290; Brandtjen & Kluge, Inc., v. Hunter, 145 S.W.2d 1009, l. c. 1013, 235 Mo.App. 909, l. c. 918. (5) It is not proper for the jury to assess the value of the property in a replevin suit if the defendant prevails unless the plaintiff has taken the property. Secs. 1798, 1799, 1800, R. S. of Mo., 1939; Major v. Hast, 263 S.W. 466, l. c. 468; Hout's Missouri Pleading & Practice, Annotated, Vol. 7, p. 63, Sec. 3376. (6) It is fundamental that a plaintiff is not entitled to recover in replevin unless plaintiff, at the time suit is begun is entitled to the immediate and exclusive possession, and unless plaintiff is so entitled, he has no cause of action. Hinshaw v. Thornhill, 27 S.W.2d 776; Kerman v. Leeper, 172 Mo.App. 286, 157 S.W. 984; Windisch v. Farrow et al., 159 S.W.2d 392, l. c. 394; Sutton v. Railroad, 159 Mo.App. 685, l. c. 688, 140 S.W. 76; Shantz v. Shriner, 167 Mo.App. 635, l. c. 643, 150 S.W. 727; Weber Implement Co. v. Dunard, 140 Mo.App. 476, l. c. 495, 120 S.W. 608, l. c. 614; Rankin v. Wyatt, 335 Mo. 628, l. c. 633, 73 S.W.2d 764, l. c. 767. (7) "Custodia legis" is that custody only which an officer has a right to assume over property by virtue of legal process. Troll v. St. Louis, 257 Mo. 626, l. c. 669, 168 S.W. 167, l. c. 178, and cases cited.

OPINION

Cave, J.

This is an appeal by plaintiff from a judgment of the Circuit Court of Lafayette County.

The suit was begun by plaintiff filing a petition in replevin in a justice of the peace court, alleging that he was entitled to the possession of four certain hogs, and that defendants wrongfully detained them. In effect the answer was a general denial. No bond was given by plaintiff and the property remained in the possession of the defendants. The trial resulted in a judgment for the defendants and plaintiff appealed.

In the circuit court plaintiff amended his petition by increasing the value of the hogs and decreasing the amount of damages claimed. Defendants filed amended answer more specifically referred to hereafter.

The cause was tried to a jury, resulting in a verdict to the effect that at the commencement of this suit plaintiff was the owner of the hogs, but that defendants then had a lien on said hogs, which lien had never been paid or tendered to the defendants, and that defendants, as against plaintiff were entitled to the possession of the hogs. Judgment was rendered accordingly, and plaintiff appealed.

Plaintiff makes several assignments of error, but they are all directed at: (a) The giving and refusing of certain instructions; and (b) whether defendants had an agister's lien on the hogs and, if so, did they waive or lose that lien by certain acts and events mentioned in evidence?

The evidence is to the effect that in March, 1942, plaintiff rented from defendant Clellia Brooks a small house and about three acres of ground, and when he moved to this property he brought with him two of the hogs in controversy. Shortly thereafter defendant Sydney Brooks found these two hogs in his feed lot and learned they were being fed with his corn. He notified plaintiff that he must pay for the feed or move the hogs. Plaintiff moved the hogs to a farm belonging to Sydney Brook's mother, but he was renting her land and the hogs were put in his feed lot on that farm and fed his corn. In June plaintiff was convicted and sentenced to ninety days in jail. While he was serving this sentence Sydney Brooks asked him if he should continue to feed and take care of the hogs which was done by both defendants. In September, 1942, when plaintiff got out of jail, he went to work for Sydney Brooks and continued there until he was discharged December 13th...