Freeman v. Lavenue

Citation72 S.W. 1085,99 Mo.App. 173
PartiesGEORGE W. FREEMAN, Respondent, v. J. L. LAVENUE, Appellant
Decision Date03 March 1903
CourtCourt of Appeal of Missouri (US)

Appeal from Wright Circuit Court.--Hon. Argus Cox, Judge.

AFFIRMED.

STATEMENT.

Plaintiff brought suit in the Wright Circuit Court in 1899, in replevin, to recover of the defendant the possession of a stock of drugs, medicines and paints. The record does not show whether or not the merchandise was delivered to plaintiff under the writ. At the March term, 1899, of the Wright Circuit Court, the cause was submitted to the court without the intervention of a jury, who, after hearing the evidence, rendered the following judgment (omitting caption):

"Now on this day this cause coming on to be heard and both parties answering ready for trial and a jury being waived the cause is submitted to the court for trial. Who, after hearing the evidence, finds that prior to the commencement of this action the defendant and one T. E. Gaskill were partners and joint owners of the property in controversy in this suit and that prior to the commencement of this action the plaintiff, Geo W. Freeman, acquired all the right, title and interest of the said T. E. Gaskill, in and to said property by purchase from said T. E. Gaskill and that plaintiff and defendant were at the commencement of this action and now are joint owners of said property subject to the partnership debts, if any, of said T. E. Gaskill and this defendant J. Len Lavenue. That neither plaintiff nor defendant is entitled to the sole and exclusive possession of said property. And it further appearing that plaintiff herein has filed in this court his petition and affidavit against defendant for partition of said property asking for the appointment of a receiver and an accounting between plaintiff and defendant in relation to said property which cause is now number 194 on this docket.

"It is therefore ordered and adjudged that all further proceedings herein be suspended until final action of the court in said action for partition and accounting, and it is further ordered that all questions arising between plaintiff and defendant in relation to said property including all questions of damage and other questions, if any, that may arise or have arisen in this suit of replevin, be adjudicated in said action for partition and accounting, but should plaintiff fail or refuse to prosecute his said action for partition and accounting with due diligence to a final judgment, then all other questions arising in this suit and not herein now adjudicated shall on motion of defendant be adjudicated in this action at any future term of this court.

"It is further ordered that when a receiver shall be duly appointed and qualified in said cause for partition and accounting, the property in controversy in this action shall be turned over to him.

"It is further ordered that defendant receive of and from plaintiff his costs and charges accrued to this date in this action for which he may have execution."

On June 24, 1899, at an adjourned term of the March, 1899, term of the Wright Circuit Court, an order was made by the court appointing a receiver in the partition suit mentioned in the foregoing judgment. The receiver took possession of the merchandise involved in the replevin suit and administered it under the order of the court. At the September term, 1899 the partition and replevin suits were, by order of the court consolidated. At the March term, 1900, a change of venue of the cause was, on the application of the defendant, awarded to the Greene Circuit Court.

The cause was filed in the Greene Circuit Court, August 16, 1900. Defendant filed his answer in that court on September 12, 1900. An interlocutory judgment was rendered and a referee appointed by the Greene Circuit Court, November 23, 1900. The referee made his report to the Greene Circuit Court on November 28, 1900, and that court rendered a final judgment in the cause December 22, 1900, from which no appeal was taken and to which no exceptions were saved.

On April 2, 1902, the defendant filed his motion in the Wright Circuit Court for permission to introduce evidence of the value of the property replevied with a view of having his damages assessed. Plaintiff filed a motion to dismiss defendant's motion. The court sustained the motion to dismiss defendant's motion for leave to introduce evidence, etc., from which ruling of the court defendant duly appealed to this court.

Judgment affirmed.

L. O Nieder and Thos. H. Musick for appellant.

The court having found that plaintiff and defendant were joint owners of the property and that plaintiff was not entitled to the sole and exclusive possession of said property, what was the further duty of the court? This is answered by sections 4473, 4474, 4475, Revised Statutes 1899, in imperative language. Berghoff v. Heckwolf, 26 Mo. 511; Ranney v. Thomas et al. , 45 Mo. 111; Rosentreter v. Brady, 63 Mo.App. 398; Ingalls v. Ferguson, 138 Mo. 358.

F. M. Mansfield for respondent.

(1) There was no error in the court's refusal to entertain the motion of defendant for permission to offer evidence as to the value of the goods. The two cases had, without objections, been consolidated, and the transfer of the cause by change of venue carried with it the whole cause, and all issues belonging thereto, to the circuit court of Greene county, and divested the Wright Circuit Court of all jurisdiction over it. Ex parte Haley, 99 Mo. 150; State v. Brumley, 53...

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