Citizens State Bank of Nevada v. Wales

• Decision Date: 13 July 1971
• Docket Number: No. 9053,9053
• Citation: 469 S.W.2d 750
• Parties: CITIZENS STATE BANK OF NEVADA, Missouri, a corporation, Plaintiff-Respondent, v. Charles WALES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 750

469 S.W.2d 750

CITIZENS STATE BANK OF NEVADA, Missouri, a corporation Plaintiff-Respondent, v. Charles WALES, Defendant-Appellant.

No. 9053.

Springfield Court of Appeals, Missouri.

July 13, 1971.

A. L. Shortridge, Joplin, for defendant-appellant.

Ewing, Ewing, Carter, Wight, Woodfill & Middleton, Robert F. Middleton, Nevada, for plaintiff-respondent.

STONE, Judge.

On June 18, 1968, plaintiff Citizens State Bank of Nevada, Missouri, instituted this replevin suit against defendant Charles Wales in the Circuit Court of Vernon County. Many months and many pleadings later, the Circuit Court of Cedar County (to which the cause had been transferred on change of venue) on July 25, 1970, sustained plaintiff's motion for summary judgment under Rule 74.04 ¹ and entered such judgment for plaintiff on its amended petition and on defendant's second amended counterclaim. Defendant appeals.

In its original petition in replevin, plaintiff alleged that 'it was the mortgagee in a chattel mortgage dated June 14, 1967, ² executed by (defendant) Charles Wales, which said mortgage has been declared in default and forclosed (sic) on the 15th day of June 1968 and that it was lawfully entitled to the possession of certain goods and chattels to the value of $91.75, to-wit: one (1) 1959 Chevrolet 1/2 ton pickup Serial No. 3A59K118135, and that afterwards on the same day defendant wrongfully took said property from the possession of plaintiff and still wrongfully and unlawfully detaines (sic) the same at the county aforesaid, to plaintiff's damage in the sum of $91.75.' (All emphasis herein is ours.) The affidavit of William C. Burroughs, plaintiff's vice-president and cashier, in the prescribed form (Rule 99.01; § 533.010) and a replevin bond (in a penal sum not shown in the transcript) approved by the sheriff (Rule 99.03; § 533.030) were attached to and filed with plaintiff's petition. Whereupon, summons in the form promulgated by the Supreme Court (Form No. 1; 5 RSMo 1969, p. 4531) was issued by the circuit clerk; copy thereof and a copy of the petition were served upon defendant personally on the same date, to wit, June 18, 1968, as evidenced by the sheriff's return; and, as the parties here agree, on that date a deputy sheriff took defendant's Chevrolet pickup and delivered it to plaintiff.

In its amended petition filed the next day, June 19, 1968, plaintiff again averred its status as 'the mortgagee in a chattel mortgage dated June 14, 1967' the foreclosure of that mortgage on June 15, 1968, and plaintiff's entitlement to possession of 'certain goods and chattels to the value of $750,' to wit, the above-described Chevrolet pickup and numerous other items including gas welding equipment and plumbing tools (all as listed and described in the chattel mortgage), 'afterwards on the same day' wrongfully taken by defendant from plaintiff's possession and still wrongfully detained to its damage in the sum of $750. The amended affidavit of Burroughs in the prescribed form and a replevin bond in the penal sum of $1,500 (whether approved by the sheriff is not disclosed in the transcript) were attached to and filed with plaintiff's amended petition. Whereupon, another summons in the same form (Form No. 1) was issued, and a copy thereof and a copy of the amended petition were served upon defendant personally on the same date, to wit, June 19, 1968, as indicated by the sheriff's return.

In his brief here, defendant asserts that 'no writ of replevin was ever issued or served.' Plaintiff counters with the statement that 'plaintiff's petition, or writ of replevin, was properly filed and served,' citing the transcript pages reflecting the petitions, affidavits and bonds, and then inviting us to examine 'a photographic copy of (defendant's) original counterclaim which is not a part of this transcript' but is attached to plaintiff's brief as an 'exhibit' thereto. ³ The procedure in replevin suits instituted in courts of record is outlined in and governed by Rule 99 (cf. §§ 533.010 to 533.230, incl.). Rule 99.02 (§ 533.020) captioned 'Order of Delivery Shall be Made--When--By Whom' ⁴ provides that, upon the timely filing of a proper affidavit (Rule 99.01; § 533.010), 'the court or judge or clerk in vacation shall make an order requiring the defendant to deliver the property specified in the affidavit to the sheriff, and requiring the sheriff, if the same be not delivered to him, to take it from the defendant and deliver it to the plaintiff.' Even though an order of delivery might be regarded as a 'writ of replevin,' it seems clear that the petition in a replevin suit cannot be equated with, substituted for, or fill the office of an order of delivery.

A meticulous search of the transcript on appeal discloses neither issuance nor service of an order of delivery (Rule 99.02; § 533.020) or anything filling the office thereof. However, the parties agree that a deputy sheriff did take possession of defendant's Chevrolet pickup and deliver it to plaintiff on June 18, 1968, when a 'summons' or 'replevin' was served on defendant, ⁵ and opposing counsel have briefed and argued the case here on the substantive question as to whether or not the pleadings, admissions, answers to interrogatories, affidavit of plaintiff's officer Burroughs, and deposition of defendant showed that there was no genuine issue as to any material fact and that plaintiff was entitled to a summary judgment as a matter of law. Rule 74.04(c). In these circumstances, we do not stick and stall in the procedural shell of the case but proceed to probe and perscrutate the substantive kernel within.

It appears appropriate at this point to note certain principles and pronouncements relevant on this review. In ruling a motion for summary judgment, it is the duty of the trial court in the first instance, and it becomes our duty on appeal, to scrutinize the record in the light most favorable to the party against whom the motion was filed and the judgment was rendered, and to accord to such party the benefit of every doubt. ⁶ A summary judgment may be rendered where, but only where, the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue of a material fact and that the movant is entitled to judgment as a matter of law; ⁷ "(a) genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts" (Maddock v. Lewis, Mo., 386 S.W.2d 406, 409, certiorari denied 381 U.S. 929, 85 S.Ct. 1569, 14 L.Ed.2d 688; Elliott v. Harris, Mo. (banc), 423 S.W.2d 831, 835; Pitman Mfg. Co. v. Centropolis Transfer Co., Mo., 461 S.W.2d 866, 873; Pagan v. City of Kennett, Mo.App., 427 S.W.2d 251, 252(3)); and the burden rests upon movant, in this instance upon plaintiff, to show by 'unassailable proof' (Rule 74.04(h)) that there is no genuine issue of fact (Nelson v. Browning, Mo., 391 S.W.2d 873, 877(1); Clampett, Summary Judgments in Missouri, 22 J.Mo.Bar 14, 17 (1966)) and that movant is entitled to judgment as a matter of law. Brooks v. Cooksey, Mo., 427 S.W.2d 498, 500(2); Norman v. Willis, Mo.App., 402 S.W.2d 46, 47(1). See Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310(2). Our appellate courts have repeatedly characterized a summary judgment as an extreme and drastic remedy and have warned that great care should be exercised in utilizing the procedure. ⁸

Defendant, a sheet metal worker and independent contractor, had resided on Route 2, Nevada, Missouri, since 1953, and had done business with plaintiff bank since he borrowed $2,000 there in 1960. From time to time thereafter, defendant executed other notes in payment and renewal of the then unpaid balances on the original loan. The last of those notes, #12257 dated March 21, 1966, was in the principal sum of $1,022.70, payable in monthly installments of $48.70, and secured by a chattel mortgage of even date therewith covering defendant's 1959 Chevrolet pickup and numerous other items of personalty. The principal sum of $1,022.70 was the total of three items, to wit, (a) 'a rewrite of a previous note with a (then) outstanding balance of $890,' (b) '$96.90 (prepaid) interest' or unearned discount, and (c) '$35.80 credit life' insurance premiums.

When defendant found it difficult to make the monthly payments required by note #12257, plaintiff prepared and defendant executed extension agreement #14553 dated June 14, 1967, in the principal sum of $366.75 payable in monthly installments of $25 on the fifteenth day of each succeeding calendar month. That principal sum was the total of three items, to wit, (a) the then 'principal balance' of $329 on note #12257, (b) '$33.17 (prepaid) interest' or unearned discount, and (c) '$4.58 credit life' insurance premium. The extension agreement was similar in form and language to that of a promissory note but provided that it was 'not in payment, but for the purpose of extending the time of payment' of note #12257 dated March 21, 1966, and that the chattel mortgage of even date therewith securing payment of that note 'shall continue in full force and effect . . ..'

A chain of interrelated events during July 1967 (hereinafter referred to as the garnishment-overdraft matter) generated smoldering friction and feeling which culminated in eruption of this litigation some eleven months later. In a 'rent suit' in the Magistrate Court of Vernon County, Missouri, in which one G. M. Ratts had obtained a judgment against defendant, summons to garnishee 'to satisfy the sum of $295.51 with interest and cost thereon' was issued and served on plaintiff on July 19, 1967; and, on the same day, plaintiff paid to the Sheriff of Vernon County 'the sum of $275.52 from (defendant's) account,' presumably the entire balance therein.

In his affidavit supporting plaintiff's motion for summary judgment, plaintiff's officer Burroughs averred that 'on or about the 19th day of July, 1967, (plaintiff)...