Carrow v. Pinnell

• Decision Date: 05 January 1932
• Docket Number: No. 21751.,21751.
• Parties: CARROW, Constable, ex rel. GROSS et al. v. PINNELL et al.
• Court: Missouri Court of Appeals

44 S.W.2d 884

CARROW, Constable, ex rel. GROSS et al. v. PINNELL et al.

No. 21751.

St. Louis Court of Appeals. Missouri.

January 5, 1932.

Rehearing Denied January 22, 1932.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be officially published."

Action by Otto Carrow, Constable of Big River Township, Jefferson County, at the relation and to the use of Francis L. Gross and another, partners, doing business under the style and firm name of Gross & Janes, against Arthur Pinnell and others. From a judgment for defendants, plaintiff and relators appeal.

Affirmed.

R. E. Kleinschmidt, of Hillsboro, for appellants.

Clyde Williams, of Hillsboro, for respondents.

BECKER, J.

This is an action upon an indemnity bond executed in favor of the constable of Big River township, Jefferson county, Mo. The petition alleges that the relators were partners, doing business under the firm name of Gross & Janes; that on November 30, 1929, judgment in the sum of $175.14 was rendered by a justice of the peace of Big River township in favor of Arthur Pinnell and against Howard Walton and V. A. O'Bannon; that execution was issued thereon, and that thereunder the constable of the township seized and levied upon sixteen thousand feet of oak lumber, whereupon, in conformity with the provisions of section 2324, Rev. St. Mo. 1929, relators served written notice upon the constable that said lumber was not the property of the said Walton and O'Bannon, or either of them, and that neither of them had any interest therein, and that the lumber belonged to them, Gross & Janes. Thereupon Arthur Pinnell, the execution creditor, as principal, and the defendants, T. A. Pinnell and G. A. Johnson, as sureties, executed and delivered to the said justice of the peace an indemnity bond, a verified copy of which was attached to the petition. The petition then further alleges that the constable advertised and sold the said sixteen thousand feet of lumber, and that at the execution sale the defendant T. A. Pinnell became the purchaser thereof for $200; that Walton & O'Bannon had no interest in the lumber at the time of the levy or at the time of the said sale, and that the lumber at the time of the sale had a reasonable market value of $400 and was the property of the said relators. The petition prays damages in the said sum of $400, the penalty of the said bond.

The answer was a general denial. Judgment was for the defendants. Plaintiff and relators appeal.

There are but two assignments of error before us on this appeal, and they pertain to the giving and refusal of instructions.

Appellant assigns as error the giving of defendants' instructions Nos. 3 and 4, in that each of said instructions told the jury that the burden of proof was upon plaintiff to show, by the greater weight of the evidence, that Gross and Janes were, at the date of sale under execution of the lumber described in the evidence, the complete and absolute owners of said lumber, and unless the plaintiff made such proof their verdict should be for defendants.

It needs no citation of authorities that these instructions are erroneous despite the fact that the relators' written notice of claim under section 2324, Rev. St. Mo. 1929, to the constable set up that they were the absolute owners of all the lumber levied on, and that the relators' petition likewise alleged such ownership in the relators, for it is sufficient for the relators to prove that they had an interest in the lumber sold under the levy by the constable, at the time of the levy upon and sale of the same under execution, to entitle them to recover the reasonable value of such interest therein at the time it was sold by the constable. State, to Use of Grabinsky et al. v. Smit et al., 20 Mo. App. 50; Steele ex rel. Milroy et al. v. Farber et al., 37 Mo. 71; Franklin v. Gumersell, 9 Mo. App. 84.

In Steele...