Davis v. Morgan Foundry Co.

• Citation: 23 S.W.2d 231,224 Mo.App. 162
• Parties: W. H. DAVIS, APPELLANT, v. MORGAN FOUNDRY COMPANY, RESPONDENT. [*]
• Decision Date: 02 December 1929
• Court: Kansas Court of Appeals

23 S.W.2d 231

224 Mo.App. 162

W. H. DAVIS, APPELLANT, v. MORGAN FOUNDRY COMPANY, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

December 2, 1929

Appeal from the Circuit Court of Jackson County.--Hon. Ralph S Latshaw, Judge.

AFFIRMED.

Judgment affirmed.

Henry J. Plagens and C. F. Douglas for appellant.

J. P Flournoy for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is a replevin suit instituted in the circuit court of Jackson county, Missouri. The facts disclosed are that defendant, Morgan Foundry Company, is a corporation organized and existing under the law and doing business at Independence, Missouri. Its business, in part, is making castings upon order. The Scott Weighing Machine Company was a corporation located and doing business at Topeka, Kansas. This company was the owner of certain weighing machine patterns which were delivered to the defendant for use in making certain castings on order for said weighing machine company. Later, a receiver for the latter company was appointed by the district court of Shawnee County, Kansas, at Topeka, to manage and close out its business affairs. It appears that prior to the appointment of such receiver the Scott Weighing Machine Company had placed with defendant company an order for the castings above referred to, upon an agreed valuation of $ 435. Some of the castings were made, of the value of $ 260.70, no part of which was ever paid. Defendant declined to make further shipments unless payments therefor were made at the time of shipment.

The receiver was appointed sometime prior to September 18, 1925, and on said date notice of the receiver's sale was regularly published. At this sale plaintiff herein purchased all the assets of the Scott Weighing Machine Company. No objections were offered to the sale to plaintiff, for the sum of $ 5800, and the sale was duly confirmed by the court. The order of sale of September 4, 1925, recites, among other things--

"That this order of sale shall apply to all of the property now in the charge and control of the receiver specifically described as follows, to-wit:

"All fixed and movable machinery with spare parts of all engines, motors, belting, shafting, attachments, fans, ovens, furnaces, gearing, factory implements, tools of trade, patterns, dies, jigs, patents, licenses, scales and scale parts wherever situated, raw material on hand, office and shop furniture and fixtures, automobiles, accounts and notes receivable, and all apparatus used in carrying on the business, together with all the appurtenances and appliances connected with and appurtenant thereto."

The order of confirmation recites:

"The receiver is directed forthwith to deliver to said W. H. Davis all the property above described now in his possession. . . . The court retains jurisdiction for the purpose of making any necessary orders concerning the possession of said property and the delivery of the same to said purchaser and his right to exercise full control and ownership thereof."

The record discloses that after the receiver took charge of the affairs of the Scott Weighing Machine Company and on January 10, 1925, he wrote defendant herein asking it to submit a statement of its account with the defunct company and on January 17, 1925, in compliance therewith, defendant wrote the receiver enclosing the statement of account asked. This account was in detail, showing numbers and dates of invoices from March 25, 1924 to July 7, 1924, making a total of $ 496.68 in debits; and credits in the total sum of $ 226.59, leaving a balance due of $ 270.09. This claim was allowed for $ 260.84.

It further appears that all this time the property in question, including the patterns above mentioned, was in possession of defendant at Independence, Jackson County, Missouri. After the confirmation of the sale plaintiff herein, through his agent, demanded of defendant the surrender of the patterns in controversy, which demand was refused and this suit followed.

The petition recites:

"Plaintiff for his cause of action states that he is the owner of and entitled to the possession of the following specific personal property, to-wit: One (1) scale base pattern; Two (2) scale housing patterns (fan type); Two (2) lever patterns (large size); Two (2) lever patterns (small size); Two (2) core boxes all of the value of $ 1500, which the defendant wrongfully detained from the plaintiff in the county of Jackson and State of Missouri."

The prayer is for the recovery of the property and $ 500 damages.

The answer admits defendant's corporate status; the possession of the property described in the petition at the time this action was instituted, and generally denies all other allegations of the petition. As affirmative defense the answer states--

"That the property described in plaintiff's petition was in the year 1923 owned by the Scott Weighing Machine Company, a corporation located and doing business in the State of Kansas; that said property was delivered to defendant by said Scott Weighing Machine Company for the purpose of being used by defendant as patterns by which to make iron castings for said Scott Weighing Machine Company and that, using said patterns, defendant made for said Scott Weighing Machine Company castings for which the said Scott Weighing Machine Company agreed to pay the sum of $ 435; that $ 260.84 worth of said castings were delivered to said Scott Weighing Machine Company and that the remainder of said castings are still in possession of said defendant; that no part of the $ 435, which the said Scott Weighing Machine Company owed defendant, has been paid, and that said defendant has a lien on said patterns, being the property described in said plaintiff's petition, for the amount of said indebtedness which said Scott Weighing Machine Company owes said defendant and is entitled to the possession of said property until said lien is satisfied."

The prayer is for the return of the property and for costs.

The amended reply admits the property described in plaintiff's petition was owned in 1923, by the Scott Weighing Machine Company; that said property was delivered to defendant by said Scott Weighing Machine Company for the purpose of being used by defendant as patterns by which to make certain iron castings for said Scott Weighing Machine Company, and denies each and every other allegation in defendant's answer.

The cause was tried to the court without the aid of a jury. The court found the issues for defendant; that it was entitled to possession of the property at the time of the institution of this suit; that defendant has a special lien on the property described in the petition and taken from defendant by the writ of replevin herein, in the amount of $ 382; and plaintiff not now having said property in his possession, that defendant have and recover of plaintiff's surety on the bond made herein, the Fidelity & Deposit Company of Maryland, the sum of $ 382, and for its costs.

A motion for new trial, duly filed, was overruled and defendant has appealed.

The first assignment of error charges the court erred in failing to find defendant's claim against the Scott Weighing Machine Company was completely discharged by the receivership proceedings and that plaintiff purchased the property set out in the petition at the receiver's sale, free and clear of any and all claims, right, title or interest in or against said property. Under this assignment is presented the question of the jurisdiction of the district court of Shawnee County, Kansas, over the patterns in question which were then in the hands of defendant in the State of Missouri. The determination of this question would seem to settle the questions arising on this appeal. It is said by the Supreme Court in Robinson v. Levy, 117 S.W. 577, 582 (citing Munday v. Vail, 34 N.J.L.aw 422):

"Jurisdiction may be defined as the right to adjudicate the subject-matter in a given case. To constitute this, there are three essentials: First. The court must have cognizance of the class of cases to which the one to be adjudged belongs. Second. The proper parties must be present. And, third, the point decided must be in substance and effect within the issue."

A court has jurisdiction of the subject-matter of a suit when it has the right to determine the controversy between the parties and grant the relief prayed. And when the court has such cognizance of the controversy, as shown by the pleadings, and has the parties before it, the judgment or order of the court is valid unless set aside or reversed upon appeal or writ of error. Another court in another suit may not inquire into any irregularities in the former judgment. In other words the judgment is not subject to collateral attack. [Hope v. Blair, 105 Mo. 85, 93, 16 S.W. 595; Adams v. Cowles, 95 Mo. 501, 8 S.W. 711; Rosenheim v. Hartsock, 90 Mo. 357, 2 S.W. 473; Bushman v. Bushman, 311 Mo. 551, 279 S.W. 122, 129.] It was held in Hewitt v. Weatherby, 57 Mo. 276, 279:

"Unless the plaintiff, who was the defendant in the judgment under which his land was sold, was properly before the court, either by appearance or service of a summons, the court had no jurisdiction to render the judgment."

It is plaintiff's contention that defendant herein was properly in the court of Shawnee County, Kansas, by virtue of filing its claim with the receiver at the latter's solicitation and request; and that said court had jurisdiction of both the person and subject-matter. A similar situation arose in the case of Stuart v. Dickinson, 235 S.W. 446, 456. That was a suit for personal damage against the Rock Island railroad then in the hands of a receiver appointed by the U.S. District Court of the Northern District of...