Associates Financial Services Co., Inc. v. Salky, 35048

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSMITH
Citation510 S.W.2d 41
PartiesASSOCIATES FINANCIAL SERVICES COMPANY, INC., Appellant, v. Bernard SALKY, Respondent. . Louis District, Division Two
Docket NumberNo. 35048,35048
Decision Date07 May 1974

Page 41

510 S.W.2d 41
Bernard SALKY, Respondent.
No. 35048.
Missouri Court of Appeals, St. Louis District, Division Two.
May 7, 1974.

Page 42

Eugene V. Krell, St. Louis, for appellant.

Blumenfeld, Kalishman, Marx & Tureen, St. Louis, for respondent.

SMITH, Presiding Judge.

Plaintiff appeals from the action of the trial court in granting a summary judgment in favor of defendant.

Plaintiff, on September 9, 1970, filed a petition in replevin against defendant seeking to recover possession of a 1970 Cadillac. Pursuant to Sec. 533.020, RSMo 1969 (V.A.M.S.) the court issued an order of delivery directing the Sheriff to immediately take possession of the vehicle and deliver it to plaintiff. No hearing was had and no notice was given to defendant prior to the issuance of the order of delivery. The sheriff took possession of the vehicle on September 18, 1970 and on the same day turned it over to plaintiff. The order of delivery was served on defendant on September 17, 1970; he entered his appearance on October 26, 1970; on November 24, 1970 he filed his answer and, with leave, a third party petition. On May 21, 1971, plaintiff's motion for an order directing sale of the vehicle was sustained and the proceeds were ordered paid into the court registry. This was done. Additional motions, interrogatories, and requests for admissions were filed and on August 22, 1972, defendant filed its motion for summary judgment. The motion attacked the pre-hearing seizure of the vehicle as unconstitutional. The affidavit in support set forth only the facts of the seizure, the absence of notice of hearing, and defendant's non-waiver of his rights. Plaintiff filed a cross-motion for summary judgment and an affidavit in support. The affidavit set up the facts upon which plaintiff claimed its lien against the vehicle and factual statements indicating that defendant surrendered the vehicle to the sheriff following telephone arrangements between his counsel and plaintiff's counsel. On September 6, 1972, the court entered its order as follows:

'Defendant's motion for summary judgment, heretofore heard and submitted, is sustained. See Fuentes v. Fla. et al. U.S. Su. Co. 40 L.W. 4692 6--12--72. No prior hearing. Costs Plaintiff.'

Defendant has filed a motion to dismiss on the basis that Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 35 L.Ed.2d 556 (1972) and State ex rel. Williams v. Berrey, 492 S.W.2d 731...

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2 cases
  • Harris-Intertype Corp. v. Donley Bindery Co., HARRIS-INTERTYPE
    • United States
    • United States Appellate Court of Illinois
    • February 7, 1975
    ...the cause of action itself. A like result has been reached by courts in other jurisdictions. In Associates Financial Services v. Salky, 510 S.W.2d 41 (1974) the Missouri Court of Appeals 'Fuentes in no way declared that a cause of action in replevin was unconstitutional, only that prejudgme......
  • Clifford Banking Co. v. Bankhead, 51725
    • United States
    • Court of Appeal of Missouri (US)
    • October 27, 1987
    ...jurisdiction. See State ex rel Tallen v. Marsh, 633 S.W.2d 458, 462 (Mo.App.1982); Associates Financial Services Company, Inc. v. Salky, 510 S.W.2d 41, 43 Defendants raise no other challenge to the circuit court's jurisdiction. The jury has determined that plaintiff, not defendants, had a s......

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