Ferguson v. Comfort

• Decision Date: 02 March 1915
• Citation: 174 S.W. 411,264 Mo. 274
• Parties: ELLA M. FERGUSON, Appellant, v. CHARLES D. COMFORT and LOUIS NOLTE, Sheriff of City of St. Louis
• Court: Missouri Supreme Court

174 S.W. 411

264 Mo. 274

ELLA M. FERGUSON, Appellant, v. CHARLES D. COMFORT and LOUIS NOLTE, Sheriff of City of St. Louis

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.

Transferred to St. Louis Court of Appeals.

Zachritz & Zachritz and Harmon J. Bliss for appellant.

William F. Smith and Henry Higginbotham for respondents.

OPINION

GRAVES, P. J.

Action in replevin. Judgment for defendants, and plaintiff appeals. Charles D. Comfort, one of the defendants herein, had a judgment in the St. Louis Circuit Court against John W. Baker and J. E. North for $ 5132.25, bearing interest at the rate of eight per cent. On this judgment Comfort procured execution, which was placed in the hands of defendant Nolte then sheriff of the city of St. Louis, for execution. Nolte levied upon the property described in the replevin petition in this case. Plaintiff, now Ella M. Ferguson, then Ella M Baker, made claim to the property, which is herein involved, and which had been levied upon as the property of the execution debtor Jno. W. Baker. The present plaintiff was then the wife of John W. Baker, but was afterward divorced, and later became Ella M. Ferguson by remarriage. Upon the receipt of the claim made by Ella M. Baker, now Ella M. Ferguson, the defendant Nolte notified said Comfort, now his codefendant, of such claim, and Comfort with proper sureties executed an indemnifying bond in the sum of $ 12,000, which was accepted by Nolte, the sheriff. The sheriff declined to receive and accept a claimant's bond tendered by Mrs. Baker, and was about to sell the property when this replevin suit was filed. In the petition for replevin the plaintiff charges the value of the property to be $ 6000, and also further says:

"And that afterwards on the same day defendants wrongfully took said property from the possession of plaintiff and still unjustly detain the same at the city and State aforesaid, to plaintiff's damage in the sum of five thousand dollars.

"Wherefore, plaintiff prays judgment against defendants for the recovery of the possession of said goods and chattels, and $ 5600 damages for the taking and detention thereof and all injuries thereto."

Plaintiff gave a replevin bond, with sureties, in the sum of $ 12,000. Upon trial had the following judgment, omitting the description of the property, was entered:

"Now, again at this day come the parties hereto by their respective attorneys and again come the jury heretofore impaneled and sworn herein, and thereupon the trial of this cause again progressed and being finished, the jurors aforesaid, upon their oaths aforesaid, say:

"We the jury find the issues in favor of the defendants; and we further find that at the time of the institution of this suit the plaintiff was not entitled to the possession of the personal property in the petition described and seized under the writ of replevin in this suit; and we further find that at the institution of this suit the defendant, Louis Nolte, Sheriff of the City of St. Louis, was entitled to the possession of said personal property; and we assess in favor of the defendant, Louis Nolte, Sheriff of the City of St. Louis, the value of said personal property at the sum of six thousand dollars; and we assess in favor of the defendant, Louis Nolte, Sheriff of the City of St. Louis, the damages by him sustained for the taking and detention of said personal property at the sum of one cent. We further find that the defendant, Charles D. Comfort, was not in possession or control of said personal property at the time of the institution of this suit or at the time of the seizure thereof under the writ of replevin.

"P. G. Murray, Foreman.

"It is therefore upon the finding of the jury as aforesaid considered and adjudged by the court that the plaintiff take nothing by her suit in this behalf and that the defendant, Louis Nolte, Sheriff of the City of St. Louis, do have and recover of the plaintiff the personal property delivered to her by the coroner of the city of St. Louis under the order of delivery in this cause and described in the plaintiff's petition herein as follows, to-wit: . . .

"Or at the election of the said defendant Louis Nolte, Sheriff of the City of St. Louis, he have and recover of the plaintiff and of John H. Vette and H. C. Grote, sureties on the replevin bond herein, the sum of six thousand dollars, the assessed value thereof, and also have and recover of said plaintiff and John H. Vette and H. C. Grote said sureties, the sum of one cent for his damages for the taking and detention of said property, together with his costs and charges herein expended. And it is further considered and adjudged by the court that the defendant, Charles D. Comfort, go hence without day and recover of plaintiff his costs herein expended and that execution issue in conformity with this judgment. Verdict and instructions filed."

From this judgment the plaintiff appealed to the St. Louis Court of Appeals and her said appeal has been by that court transferred to this court upon the ground that more than $ 7500 was involved in the controversy. An examination of the record shows that plaintiff offered no evidence as to the alleged $ 5000 damage. In the record, however, we find, among other matters, the following:

"The witness testified that all the articles mentioned in plaintiff's petition were either given to her or purchased by her with her own money or with money given to her by her husband for her own use, giving the details as to each particular article mentioned in plaintiff's petition; stating if a gift, by whom given and when, or if a purchase made by her, when and where made.

"Witness stated that the chattels mentioned in the petition were levied on by the sheriff on July 12, 1907. Sheriff did not take them away, but had possession until witness obtained possession under the order of delivery in this cause.

"Witness stated that...