Clauson v. Tipton

• Decision Date: 27 January 1941
• Docket Number: No. 19591.,19591.
• Citation: 147 S.W.2d 148
• Parties: CLAUSON v. TIPTON.
• Court: Missouri Court of Appeals

147 S.W.2d 148

CLAUSON v. TIPTON.

No. 19591.

Kansas City Court of Appeals. Missouri.

January 27, 1941.

Appeal from Circuit Court, Jackson County; Thomas E. Walsh, Judge.

"Not to be published in State Reports."

Action by C. D. Clauson against G. W. Tipton for damages allegedly growing out of a trade and sale concerning an aeroplane, wherein plaintiff sought to have the aeroplane attached. From a judgment of the circuit court which sustained the attachment and granted plaintiff a personal judgment against defendant, defendant appeals.

Judgment reversed in so far as it sustains the attachment and reversed and remanded as to the personal judgment against defendant.

Len L. Balke, of Kansas City, for appellant.

Melvin E. Buck and Howard A. Yost, both of Kansas City, for respondent.

SPERRY, Commissioner.

This is an attachment suit. The case was originally filed by C. D. Clauson, whom we will refer to as plaintiff, in the justice court of Grover Gaugh against G. W. Tipton, defendant. Thereafter the case was transferred on change of venue, to the justice court of H. W. Willsie, where it was tried and judgment was for plaintiff. Appeal was perfected and the case was tried in circuit court without aid of a jury. Judgment was for plaintiff and defendant appeals.

The abstract of the record does not include any of the evidence. However, to pass on points raised by defendant, it is not necessary that we have the evidence before us.

Defendant sold to plaintiff an aeroplane. The consideration for such sale was an automobile owned by plaintiff, and a promissory note in the amount of $100, made, executed and delivered to defendant by plaintiff. Thereafter there arose a dispute concerning title to the aeroplane, and plaintiff lost it, either to defendant or to another claiming title. Defendant delivered to plaintiff the automobile; but he had sold the note to an innocent purchaser for value and before maturity and said purchaser sued plaintiff on the note. As a result of said suit on the note plaintiff was compelled to pay same and to pay out other sums in connection with the entire transaction.

After the above happenings plaintiff brought this suit against defendant to recover damages growing out of the trade and sale concerning the aeroplane. He filed his petition and affidavit in attachment, alleging that defendant was a nonresident of Missouri. Writ of attachment was duly issued, directed "To any constable or Sheriff of Brooking Township, in the County of Jackson," and commanding the attachment of a certain aeroplane. The writ was issued October 29, 1937, and was made returnable November 12, 1937. The writ was returned as of the date it issued, reciting the attachment of the aeroplane described in the writ, the garnishment of one Edgar Smith, and diligent search and failure to find defendant. The return was signed:

                       "J. B. Rush, D. S.,  Constable. 
                         "by ...... Deputy Constable." 
                

Thereafter defendant appeared in person, and by attorney, and moved dismissal of the attachment. On trial in the circuit court the attachment was sustained and judgment for plaintiff and against defendant was rendered, in the amount of $211.75.

Defendant challenges the validity of the judgment on the attachment, claiming that the attachment writ was not served by a proper officer, hence that the court never obtained jurisdiction of the thing attached, to-wit: the aeroplane, and was, therefore, without power to act concerning it. He claims that the writ was directed to the sheriff or any constable of Brooking Township, and, therefore, could be served only by one of the aforesaid officials, and that the return shows on its face that it was not served by either of such officers.

The writ was directed to any sheriff or constable of Brooking Township. The return shows that it was not executed by any officer to whom it was directed. It is signed "J. B. Rush, D. S. Constable." The fact that the word "constable" was marked out on the return indicates that J. B. Rush was not a constable. The letters "D. S.," might indicate that Rush was a deputy sheriff; but it is no evidence that he was either a constable or a sheriff. There is no evidence that the writ was ever served by a person authorized to serve it. Such a return is no evidence that legal service was ever obtained. State ex rel. Bond v. Fisher, 230 Mo. 325, loc. cit. 338, 340, 130 S.W. 35, Ann.Cas.1912A 970. The service was void. State ex rel. Bond v. Fisher, supra, 230 Mo. loc.cit. 338, 130 S.W. 35, Ann.Cas.1912A, 970; Deichmann v. Hogan, Mo.App., 26 S.W.2d 874, loc.cit. 875. The attachment of the res, the aeroplane, was void. The justice court did not obtain jurisdiction over it and, consequently, no jurisdiction was obtained by the circuit court on appeal. The fact that defendant entered his personal appearance did not confer jurisdiction over the res. First Nat. Bank v. Griffith, K. C.App., 192 Mo.App. 443, loc.cit. 445, 182 S.W. 805. It follows that the judgment of the court sustaining the attachment must be reversed.

Defendant complains that the non est return, as to defendant, was premature, it having been made as of October 29, 1937, whereas the writ was not returnable until ...