Chestnut v. Mertz

• Decision Date: 08 November 1940
• Docket Number: No. 25440.,25440.
• Citation: 144 S.W.2d 194
• Parties: CHESTNUT v. MERTZ.
• Court: Missouri Court of Appeals

144 S.W.2d 194

CHESTNUT v. MERTZ.

No. 25440.

St. Louis Court of Appeals. Missouri.

November 8, 1940.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be reported in State Reports."

Action by C. E. Chestnut against H. C. Mertz, for conversion of automobile and for negligently failing to take proper care of plaintiff's automobile. From a judgment for plaintiff, the defendant appeals.

Affirmed.

W. W. Schiek, of St. Louis, for appellant.

Edwin A. Smith, of St. Louis, for respondent.

HUGHES, Presiding Judge.

The plaintiff filed a suit in replevin on July 1, 1929, in a justice of peace court, charging that on May 27, 1929, he had delivered to defendant his automobile which defendant was to paint and have ready to return to him on June 1, 1929. On June 1, plaintiff went to defendant's place of business to get his automobile and ascertained that the painting job had not been completed, and was told by defendant to return later in the day to get the automobile. Plaintiff returned about five o'clock of that day and was informed by defendant that his son had taken the automobile and left for parts unknown. In other words, defendant's son had stolen plaintiff's automobile while it was in defendant's possession. Defendant assured plaintiff that he would get him another automobile or pay him the value of it. Plaintiff has never received his automobile back or been paid anything for it.

The suit in replevin followed as above stated, on July 1, 1929. A change of venue was taken on defendant's application to another justice of the peace where the case was tried and resulted in a verdict for the plaintiff. An appeal was taken by defendant to the circuit court, where for some reason the case lay dormant until October 20, 1936, plaintiff's first attorneys having apparently abandoned the case, at which time plaintiff's present attorney brought the case to trial in the circuit court. At the conclusion of the evidence defendant offered a demurrer, which was either sustained or the Court stated it would be sustained, and thereupon plaintiff took a nonsuit.

Shortly thereafter, and well within one year, plaintiff filed this action before a justice of the peace for (first count) conversion of his automobile, and (second count) negligently failing to take proper care of plaintiff's automobile. Upon trial in the justice of the peace court defendant prevailed upon the ground that the suit not having been filed within five years after the alleged conversion, the action was barred by the Statute of Limitations, Section 862, R.S.1929, Section 862, Mo.St.Ann. p. 1143. From that judgment plaintiff appealed to the circuit court, where after a trial before the court, and on November 21, 1938, plaintiff was given judgment for $782.50, being $500 for the value of his automobile and $282.50 interest from the time of its conversion. After an unavailing motion for new trial, defendant appeals to this Court.

Appellant assigns as error the overruling of a demurrer to plaintiff's cause of action offered at the beginning of the trial of the case, and that the cause of action as stated in the petition was barred by the Statute of Limitations. Respondent takes the position that although this suit was filed more than five years after the alleged wrong, his cause of action is not barred by reason of the saving clause of Section 874 R.S.1929, Mo.St.Ann. § 874, p. 1161, to the effect that if an action shall have been commenced within the time prescribed by Section 862 R.S.1929, Mo.St.Ann. § 862, p. 1143, and the plaintiff therein suffered a nonsuit, such plaintiff may commence a new action within one year after such nonsuit suffered.

That plaintiff suffered a nonsuit in his first action is conceded by defendant in his answer and in his brief and argument; his sole position being that a suit to come...