Anchor Milling Co. v. Walsh

• Decision Date: 22 December 1885
• Citation: 20 Mo.App. 107
• Parties: ANCHOR MILLING COMPANY, Appellant, v. MICHAEL WALSH, Respondent.
• Court: Missouri Court of Appeals

20 Mo.App. 107

ANCHOR MILLING COMPANY, Appellant,

v.MICHAEL WALSH, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 22, 1885.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

G. M. STEWART, for the appellant.

A. R. TAYLOR and A. A. PAXSON, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was an action of replevin for certain mules, harness, and wagons. The plaintiff's claim of title depended upon two instruments: 1. A bill of sale intended as a mortgage; 2. A mortgage made by the defendant to certain third persons, and by the latter assigned to the plaintiff. The plaintiff had a verdict and judgment for the property embraced in the second of these instruments, and as to that part of the judgment there is no controversy. In respect of the property mentioned in the bill of sale, the defendant had a verdict and judgment in the usual statutory form, assessing its value at one hundred and seventy-five dollars, and assessing damages for its detention at three hundred dollars.

The appellant raises two questions only:

I. Whether the plaintiff is estopped from recovering in this action the property embraced in the bill of sale, by reason of the fact that, prior to the commencement of this action, the plaintiff had sued out an attachment against the defendant, and had caused it to be levied upon such property as the property of the defendant. The plaintiff offered to show that this levy had been released prior to the seizure of the property in the present replevin suit; but the court on objection from the defendant, excluded the evidence and the plaintiff excepted. The plaintiff has not preserved this exception by including it in his motion for a new trial, and, therefore, we can not consider it. On the other hand, the court excluded evidence tending to show that at the time when the sheriff executed the writ of replevin in the present action, the property taken under it was in his hands under the levy of the attachment. So that the naked question presented under this assignment of error is whether by the mere fact of bringing the attachment suit prior to the bringing of this replevin suit, and causing the property conveyed in the bill of sale to be levied on in the attachment suit as the defendant's property, the plaintiff is estopped from maintaining this replevin suit. The court instructed the jury that the plaintiff was so estopped. We know of no principle under which this ruling can be upheld. It is sought to vindicate this ruling by the decision in Langsdorf v. Field (36 Mo. 440), and Field v. Langsdorf (43 Mo. 32).

Those cases are no authority for this position. They were entirely different. The lien of a third party intervened; the court was dealing with his rights, and besides the proposition decided, there is in one respect the converse of the proposition laid down in the instruction here. In that case a merchant owed a debt. He conveyed, or pretended to convey, a lot of goods to his creditor in payment. When the values of the goods were carried out and footed up, it was found that he had conveyed an excessive quantity. Thereupon, the creditor, without releasing the conveyance, took a confession of judgment for his debt from the merchant, and under it levied an execution upon the very same goods. But prior to this levy another creditor levied an attachment upon the goods. It was held, and plainly enough, that this subsequent act of the former creditor in taking the confession of judgment from the merchant, and levying an execution thereunder upon the goods which he had previously pretended to receive in payment of his debt, was totally...