Bank of Thayer v. Klump Transfer Co.

• Decision Date: 07 March 1949
• Parties: BANK OF THAYER, A CORPORATION, RESPONDENT, v. ALBERT KUEBLER, AND FRED E. KUEBLER, CO-PARTNERS D/B AS KLUMP TRANSFER Co., APPELLANTS.
• Court: Missouri Court of Appeals

219 S.W.2d 297

BANK OF THAYER, A CORPORATION, RESPONDENT, v. ALBERT KUEBLER, AND FRED E. KUEBLER, CO-PARTNERS D/B AS KLUMP TRANSFER Co., APPELLANTS.

Kansas City Court of Appeals. Missouri.

Opinion delivered March 7, 1949.

Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

APPEAL DISMISSED.

Balke & Kelly and Len L. Balke for appellants.

(1) The Court erred in overruling defendants' motion to quash the writ of replevin, plaintiff's affidavit in replevin being void for lack of execution by a proper person. The Court was without jurisdiction to issue the writ, lack of jurisdiction cannot be waived. Sec. 1788, R.S. Mo., 1939; Elsea v. Bass, 229 Mo. App. 250, 77 S.W. 2d 164; Clauson v. Tipton, (Mo. App.) 147 S.W. 2d 148; First National Bank v. Griffith, 192 Mo. App. 443, 182 S.W. 805; Callahan v. Huhlman, 339 Mo. 634, 98 S.W. 2d 704. (2) Court erred admitting evidence, for purpose of showing proper place for recording chattel mortgage, the testimony of various witnesses as to prior statements of the mortgagor, and further erred in admitting for such purpose recitals as to mortgagor's residence which appeared in the note and chattel mortgage, such evidence being hearsay and not the best evidence. Payne v. Payne, 57 Mo. App. 130; Clay v. Walker, (Mo. App.) 6 S.W. 2d 961; 14 C.J.S., Sec. 151, p. 757. (3) The Court erred in overruling defendant's motion for a directed verdict because there was no evidence that plaintiff had made a demand for the truck before suit and there was no evidence that defendants had either actual or constructive notice of plaintiff's mortgage. By statute, to constitute notice to whole world of mortgage on motor vehicles, it is required that a record of the mortgage be noted on the certificate of title to the mortgaged vehicle. Sec. 3488, R.S. Mo., 1939. (4) In giving plaintiff's instruction No. 4 and in refusing to give defendants' instruction A the Court disregarded all evidence as to residence of the mortgagor, and failed to considered the law of Missouri requiring chattel mortgages to be recorded in the county where a resident mortgagor resides, and further disregarded the law of Missouri requiring a record of the mortgage to be noted on the certificate of title to impart notice. Secs. 3486 and 3488, R.S. Mo. 1939; Wisdom v. Keithley, 237 Mo. App. 76 167 S.W. 2d 450; Geiser Mfg. Co. v. Todd, (Mo. App.) 204 S.W. 287; Hollipeter, Shonyo & Co. v. Maxwell, 205 Mo. App. 357, 224 S.W. 113; Jerome P. Parker-Harris Co. v. Stephens, 205 Mo. App. 373, 224 S.W. 1036; Adamson v. Fogelstrom (W.M. Leitch Sheep Commission Co., Garnishee), 221 Mo. App. 1243, 300 S.W. 841; Bank of Malden v. Wayne Heading Co. et al., 198 Mo. App. 601, 200 S.W. 693; Lasswell v. Henderson, 144 Mo. App. 396, 128 S.W. 789. (5) The Court erred in giving plaintiff's instructions Nos. 4 and 5 and in submitting them to the jury along with instruction X and the forms of verdict offered by the plaintiff for the jury's guidance for the reason that said instructions and forms considered together were misleading, confusing, inconsistent and contrary to each other, and for the further reason that they assume damage to plaintiff, set out an improper measure of damage, and are not based on competent evidence. The verdict of the jury was speculative and irregular in that it was not based upon competent evidence and that the jury found two different sums as being plaintiff's special interest. The judgment is erroneous because in awarding to plaintiff, at plaintiff's election, either the truck or a money judgment it fails to follow the verdict of the jury and departs from the law which allows a recovery of only the special interest by the prevailing party under circumstances such as those in this case. State ex rel. Booker v. Bland et al., 355 Mo. 786, 197 S.W. 2d 967; Sanders v. Brooks et al., (Mo. App.) 194 S.W. 2d 540; Zahner Mfg. Co. v. Harnish et al., 227 Mo. App. 287, 51 S.W. 2d 145; National Theater Supply Co. v. Scoville et al., 223 Mo. App. 968, 22 S.W. 2d 68.

Richard K. Phelps for respondent.

(1) There was no error in overruling the appellants' motion to quash the writ of replevin. 7 M.R.S.A., 1788; Elsea v. Bass, 77 S.W. 2d 166; Clauson v. Tipton, 147 S.W. 2d 148; First National Bank v. Griffith, 182 S.W. 805. (2) The court did not err in admitting testimony of declaration as to residence made by James H. Bradley. Wigmore Evidence, 3rd Edition, page 89, Section 1727; Browning v. Browning, 41 S.W. 2d 860; Mattan v. Hoover, 166 S.W. 2d 557; Edie v. Coleman, 141 S.W. 2d 238; Glazier v. Van Sant, et al., 33 F. Supp. 113; Hall v. Schoeneke, 31 S.W. 97; Scovill v. Glassner, 79 Mo. 449; Finley v. Finley, 6 S.W. 2d 1006; In re Ozias Estate, 29 S.W. 2d 240; Trigg v. Triff, 41 S.W. 2d 583; Bradshaw v. Bradshaw, 166 S.W. 2d 805; Payne v. Payne, 57 Mo. App. 130; Clay v. Walker, 6 S.W. 961. (3) The court did not err in overruling the appellants' motion for directed verdict. There was no error on the part of the court either in the giving or in the refusing of instructions. Wisdom v. Keithley, 167 S.W. 450; Geiser Mfg. Co. v. Todd, 204 S.W. 287; Yellow Manufacturing Acceptance Corporation v. Rogers, 142 S.W. 2d 888; Gratiot v. U.S., 45 U.S. 80; S.S. Kresge Co. v. McCallion, 58 F. 2d 931 (C.C.A. Mo.); Valley Shoe Corporation v. Stout, 98 F. 2d 514 (C.C.A. Mo.); Schneider v. Dubinsky Realty Co., 127 S.W. 2d 691 (Mo. Sup.); Cason v. Kansas City Terminal Railroad Co., 123 S.W. 2d 133 (Mo. Sup.); Collins v. Leahy, 102 S.W. 2d 801 (Mo. App.); Gannaway v. Pitcairn, 109 S.W. 2d 78 (Mo. App.); Taylor v. Sesler, 113 S.W. 2d 812 (Mo. App.); Barker v. Kresge Co., 117 S.W. 2d 674 (Mo. App.).

DEW, J.

The respondent, as plaintiff below, brought this suit in replevin to recover possession of a truck, and for damages for alleged detention thereof. The bank claimed a special interest under a chattel mortgage on the truck after an alleged default of payment. The defense was lack of actual and constructive notice of the mortgage on the part of the defendants. There was a judgment for plaintiff for possession of the property found to be of the value of $317.18 or, at plaintiff's election, for the sum of $317.18, with costs. Defendants have sought to appeal.

We regret the procedural situation in this case that makes it unnecessary to state more fully the evidence and issues involved and prevents a consideration of the merits, and which compels us otherwise to dispose of this appeal under the Code of Civil Procedure (Laws of Mo. 1943, pp. 353-397) and Supreme Court rules.

Respondent has filed with us its motion to dismiss the appeal for failure of the defendants to file a notice of appeal within the time required by law. The facts respecting this motion are uncontroverted. The verdict and judgment for plaintiff were entered November 19, 1947. Defendants' amended motion for new trial was timely filed, on to-wit, November 29, 1947, which was overruled on February 7, 1948. On February 26, 1948, within the same term, the court entered an order finding that defendants were never notified of the court's ruling on their motion for new trial; that no constructive notice was given them by publication in The Daily Record, "the newspaper in which such matters are customarily set out", and that by reason of such lack of notice defendants had been deprived of an opportunity to perfect an appeal; whereupon, the court set aside its order of February 7, 1948, overruling said motion for new trial, and entered a new order overruling the same as of February 26, 1948. Thereafter, on March 3, 1948, defendants filed notice of appeal from said judgment of November 19, 1947.

Appellants contend that the order of the court of February 26, 1948, setting aside its order of February 7, 1948, overruling the motion for new trial and entering a new order to the same effect as of February 26, 1948, was within 90 days after the motion for new trial was filed, was within 30 days after the original order was made and within the same term of court; that the court had power to set aside its order of its own volition during the same term; that the notice of appeal was filed within ten days after the last order overruling the motion for new trial; that the Civil Code provides for such liberal construction of its requirements, as to secure just, speedy and inexpensive determination of every action; that justice would not be served by dismissing the appeal because of circumstances beyond appellant's control, and that respondent has not been harmed or misled in the premises.

We are profoundly conscious of the intent of the new Code of Civil Procedure to liberalize and to simplify the method of procedure in our trial and appellate courts, and are familiar with the rules of the Supreme Court that are designed to achieve that salutary purpose, and the opinions of the appellate courts which are calculated to apply and to effectuate that spirit and objective. Under the Code itself and under the rules of court suspension or modification of certain technical requirements, extension of time and certain other instances of elasticity are authorized under certain conditions. Those instances so far as the appellate procedure is concerned, pertain principally to matters of briefs and transcripts of the record in situations wherein suspension or modification of such rules will prevent an injustice (See Code, Sections 129, 130, 138, 139, Rules 1.15, 1.28). All this is to the end that the court may "facilitate and increase the disposition of cases on their merits", and to "minimize the number of cases disposed of on procedural questions". (Rule 1.28).

It was said by the Supreme Court in Baldwin v. Desgranges, 199 S.W. 2d 353, 355, concerning the timeliness of a transcript of the record:

"Only in exceptional circumstances could an action be...