State ex rel. American Asphalt Roof Corp. v. Trimble

• Decision Date: 04 January 1932
• Docket Number: 31396
• Parties: The State ex rel. American Asphalt Roof Corporation v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

44 S.W.2d 1103

329 Mo. 495

The State ex rel. American Asphalt Roof Corporation v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 31396

Supreme Court of Missouri

January 4, 1932

Certiorari to Kansas City Court of Appeals.

Judgment and opinion quashed.

Gossett Ellis, Dietrich & Tyler and L. L. Watts for relator.

(1) In a proceeding under Secs. 1184, 1185, R. S. 1929, where property seized in execution is claimed by a third party, the only issue for trial is whether or not the property belongs to the claimant, and it is error to render a money judgment against the plaintiff and in favor of the claimant. Mastin v. McBride, 81 Mo. 354; Langford v Fanning, 7 S.W.2d 729; Williamson v. Bank of Curryville, 69 Mo.App. 368; 50 C. J. 191; Williams v. Braden, 57 Mo.App. 317; Hargadine-McKittrick Dry Goods Co. v. Carnahan, 83 Mo.App. 318; Citizens Trust Co. v. Elders, 212 Mo.App. 589. (2) The claimant in this case is estopped from asserting ownership of the automobile in question regardless of what the facts as to actual ownership might be. Page v. Butler, 15 Mo. 56; Ewart on Estoppel, 263; First National Bank of Holdenville v. Kissaire, 22 Okla. 54; Platner v. Bourne, 275 S.W. 590; Peddicord v. Ins. Co., 26 Ill.App. 407; Lick v. Monroe, 69 P. 285.

J. F. O'Sullivan and J. W. Kachelhofer for respondents; O. H. Stevens of counsel.

(1) In certiorari to a court of appeals the facts stated in the opinion of such court are the only facts this court will consider. State ex rel. Northwestern Nat. Ins. Co. v. Trimble, 20 S.W.2d 51; State ex rel. Ry. Co. v. Haid, 37 S.W.2d 438. (2) Alleged conflict in the opinion under review with that of another court of appeals or an authority from some other state does not in this proceeding concern this court. State ex rel. Valentine Coal Co. v. Trimble, 28 S.W.2d 1030; State ex rel. Mann v. Trimble, 290 Mo. 266; State ex rel. Am. Packing Co. v. Reynolds, 287 Mo. 710. (3) In reviewing an opinion of a court of appeals it is not the province of this court to determine as an original proposition, whether the ruling of that court is right or wrong. State ex rel. Harrington v. Trimble, 31 S.W.2d 785; State ex rel. Tummons v. Cox, 282 S.W. 694; State ex rel. Weisheyer v. Haid, 26 S.W.2d 940; State ex rel. Ry. Co. v. Haid, 37 S.W.2d 438. (4) The opinion under review is not in direct conflict with any previous controlling decision of this court.

OPINION

Ragland, J.

Certiorari. In this proceeding relator seeks to have quashed the opinion and judgment of the Kansas City Court of Appeals in the case of American Asphalt Roof Corporation, a corporation, appellant, v. Mollie V. Marler, L. W. Marler and D. G. Marler, respondents, on the grounds that its decision in said cause is in conflict with the decisions of this court.

The facts of the case considered by the Court of Appeals, and its ruling with respect to them, sufficiently appear from the following excerpts taken from its opinion:

"The American Asphalt Roof Corporation [relator here] obtained a judgment against L. W. Marler, and later also had judgment against his wife, Mollie V. Marler, upon the same debt, to satisfy which an execution was issued and levy made on a certain automobile as the property of the wife. The sheriff took possession of the car August 12, 1929. On the same day L. W. Marler and D. G. Marler, his son, filed a joint affidavit and claim with the sheriff, in which it is alleged that the automobile in question is the property of affiants, subject to a mortgage; that D. G. Marler was the owner of another car which was traded for the car in question and paid substantially all that has been paid on the purchase price; that although the title or bill of sale to the car in question was taken in the names of L. W. Marler, Mrs. L. W. Marler (Mollie V. Marler), and D. G. Marler, the said Mrs. L. W. Marler in truth and in fact has no right, title or interest therein; that the bill of sale was taken in the names of the three persons as a matter of convenience. . . .

"After claim of ownership was filed, plaintiff furnished an indemnifying bond to the sheriff and claimants, and the sheriff retained possession upon failure of claimants to present a forthcoming bond. At the request of plaintiff there was advertisement of execution sale, and on the day set for sale it was announced by the plaintiff that the car was mortgaged and that it was proposed to sell only the equity of redemption. Upon this announcement the sheriff declined to sell. Thereafter a subsequent advertisement of sale was had and the deputy sheriff in charge again refused to sell. The attorney for plaintiff, in behalf of some one undisclosed by the record, purchased the note and chattel mortgage from the finance company and paid therefor the sum of $ 961.62, took possession of the automobile from the sheriff, and later sold the car under the terms of the chattel mortgage. The sheriff made return that he had delivered the car to the mortgagee. Previous to the sale of the note the finance company had requested possession of the car and had drawn up a notice of lien for the sheriff. . . .

"At the time of trial the sheriff had surrendered possession of the car, according to his return, and apparently upon request of plaintiff's attorney alone, and without any application to the court or order therefor. . . .

"The answer to this claim [D. G. Marler's] was a general denial, and a further plea [of estoppel.] . . .

"Upon the issues thus made, and by stipulation, the case was heard and tried by the circuit judge without a jury. No findings of fact or declarations of law were made except the findings shown in the judgment. The judgment recites that upon a trial of the issues between plaintiff and claimants the court finds that the car in question levied upon as the property of Mollie V. Marler is in fact the property of claimant D. G. Marler, and further finds the levy and seizure wrongful and unlawful as to said claimant; 'and the court further finds said car has not been restored to said claimant and that his interest therein, which the court finds to have been of the value of $ 314, has been lost, dissipated and converted as to him by virtue of said wrongful and unlawful levy and seizure.' It was ordered, adjudged, and decreed that the claimant, D. G. Marler have judgment against the sheriff and the plaintiff and the sureties upon its indemnifying bond filed with the sheriff in the sum of $ 314. . . .

"The sole remaining question, and the decisive one in the case, is whether the court had power to inquire into the value of the interest of the owner and award a money judgment under the state of facts presented. . . .

"Under the state of facts in this case, we hold that the sections of the statute in question do not prohibit a money judgment for claimant; that the direction of Section 1185, Revised Statutes 1929, for an order to deliver the property assumes that the facts will show that the property is in possession of the sheriff, and that this provision does not exclude any other appropriate order or judgment called for by the position of the parties or the possession of the property at the time of trial. The judgment should be affirmed."

The ruling just set forth is the one against which relator lodges its complaint. It is peculiarly worded. If the Court of Appeals by couching it in the form it did meant to hold that the court, in a special statutory proceeding, may make any...