Carroll v. Frank
| Decision Date | 22 November 1887 |
| Citation | 28 Mo.App. 69 |
| Parties | JAMES CARROLL, Appellant, v. JOSEPH FRANK, Respondent. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.
Reversed and remanded.
MONTAGUE LYON, for the appellant.
NATHAN FRANK, for the respondent.
An attachment suit was brought before a justice of the peace, by Henry Lyon & Son, against Jacob Karatofsky, and the writ was levied upon one zinc trunk and contents thereof. Thereafter, the defendant in this action, Joseph Frank brought an action of replevin before another justice of the peace, in which action he obtained the custody of the trunk and its contents from the constable. Thereafter the justice dismissed the action for want of jurisdiction, leaving Mr Frank in the custody of the chattels in controversy. The constable now brings this action against Mr. Frank for the value of the same. The substantial defence is, that the chattels are the property of the defendant. There was a trial before the court, sitting as a jury, and judgment was given in favor of the plaintiff, but for nominal damages only. The plaintiff appeals to this court.
If the defendant was really the owner of the chattels it is a complete defence to this action for him to prove his ownership, for the constable could not acquire, as against the owner, any special property in the goods of a stranger to the attachment suit, from the mere fact of levying upon them. He could not acquire any special property therein, as against the real owner, by virtue of his trespass upon such property.
Against the objection of the plaintiff, Jacob Karatofsky, the defendant in the former attachment suit, was allowed to give in evidence the unsworn declarations of his son, Isaac Karatofsky, made to the witness while Isaac was in possession of the trunk and contents, to the effect that he had got them at the defendant's store in Fort Smith, Arkansas. It is true that the declarations of a party, made while in possession of personal property, against his title, are admissible in evidence either against himself or against a party claiming under him. Darrett v. Donnelly, 38 Mo. 492, 494. But, in this case, the plaintiff does not claim under Isaac Karatofsky, and, therefore, this rule does not let in his unsworn declarations. It is, also, true that the declarations or admissions of one in possession of property explanatory of his possession, as...
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Hobbs v. Williams
...can have such right and maintain any action therefor he must levy his writ upon the property. [Mulheisen v. Lane, 82 Ill. 117; Carroll v. Frank, 28 Mo.App. 69.] This necessarily so because it is only by virtue of a levy that the execution officer can obtain a special interest in the propert......