First National Bank of Milan v. Kibble
| Decision Date | 25 May 1925 |
| Citation | 273 S.W. 148,221 Mo.App. 311 |
| Parties | FIRST NATIONAL BANK OF MILAN, APPELLANT, v. OLIVER KIBBLE, ET AL., RESPONDENTS. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Livingston County.--Hon. Arch B Davis, Judge.
AFFIRMED.
Judgment affirmed.
L. A Chapman, U. A. House and Kitt & Marshall for appellant.
Scott J. Miller for respondents.
Trimble, P. J., absent.
This is an action by attachment in aid of a suit upon a promissory note of $ 4160 executed by defendants to plaintiff. The grounds of attachment as contained in the writ were the 5th, 7th, 8th, 9th and 10th grounds of attachment provided in section 1725, Revised Statutes 1919.
Plaintiff is a National Bank of Milan, Sullivan County, Mo., and defendants are young married people living on a farm near Milan in that county. They had 160 acres of land where they lived against which there was a first mortgage of $ 7000, a second for $ 3000, and a mortgage to plaintiff given in security for the note which is the basis of this action. Besides the home farm Oliver Kibble leased from his father-in-law, W. H. Columbar, 200 acres adjoining the home place on the south, at a rental of $ 700 per year. For the first year's rent defendants issued their promissory note secured by a chattel mortgage covering certain chattels of defendants not covered by any previous pledge.
At this time defendants' finances were considerably involved, including certain indebtedness to the plaintiff secured by chattel mortgage on thirty head of registered black cattle and some mules and horses. On or about August 12, 1922, plaintiff demanded an additional security a mortgage on defendants' growing crop, but this security was not given. The evidence shows that about this time the defendants loaned to a relative, one Floyd Franklin, for breaking and work, three young mules two and three years of age that were included and described in defendants' chattel mortgage to plaintiff. Plaintiff insists, however, that the mules were placed with Franklin for the purpose, or with the effect, of concealing them from creditors of defendant.
The suit on the note in question was instituted in the circuit court of Sullivan county and by change of venue was transferred to Livingston county where it was tried. In aider of the principal suit, plaintiff swore out an attachment in the circuit court of Livingston county and thereunder attached and sold all of Kibble's property, including his registered cattle, horses, hogs and farm implements. The funds derived from the sale not being sufficient to cover defendants' indebtedness to the bank, the 160 acres of land also were sold under plaintiff's deed of trust. The attachment was taken out in the name of plaintiff bank, but was sworn to by Lenny Baldridge, its cashier. It contains the following statutory causes of action, to-wit:
There was a plea in abatement timely filed by defendants, denying specifically each cause of action stated in the affidavit for attachment. The cause was tried before a jury on the plea in abatement resulting in a verdict for defendants and a judgment thereon was accordingly entered. Motions for new trial and in arrest of judgment on the plea in abatement were unavailing. Thereafter on January 23, 1924, judgment was rendered for plaintiff on the merits of said cause for $ 2997.90. An appeal from the judgment on the plea in abatement was granted plaintiff on January 23, 1924, and on August 29, 1924, a certified copy of the judgment on the plea in abatement and of the judgment on the merits and order granting appeal were filed in this court.
The first point for our consideration is defendants' motion to affirm the judgment. The motion states (1) that the judgment was rendered more than sixty days prior to the first term of this court, and the appeal was not filed at said term; (2) that the appeal was not filed to the second term, and (3) that the appeal was not filed to the third term of this court.
This being an attachment suit the appeal is governed by section 1766, Revised Statutes 1919, which provides that when issues are found for defendants on a plea in abatement, as in this case, the court shall render judgment that the attachment is abated, and that thereupon plaintiff may file his bill of exceptions, and the cause proceed to trial on the merits.
Upon the trial on the merits either party may appeal, the plaintiff from the finding on the plea in abatement, or on the merits, or both. An appeal will not lie from a judgment on a plea in abatement in an attachment suit unless the record shows the case has been tried on the merits. [Glass v. Carey, 141 S.W. 719.] In other words a judgment on the merits is a condition precedent to an appeal, whether the judgment on the plea in abatement be for plaintiff or defendant. [Crawford v. Armstrong, 58 Mo.App. 214; Hull v. Beard, 80 Mo.App. 200; Laun v. Pfister, 69 Mo.App. 629; Castleman v. Harris, 86 Mo.App. 270.] It necessarily follows that before plaintiff may appeal from an adverse judgment on a plea in abatement, he must await the judgment on the merits, after which he may take his appeal. Hence the date on which the judgment on the merits is rendered determines the term of the appellate court to which the appeal is returnable. [Secs. 1478, 1479, R. S. 1919.]
In the case at bar, as shown by the record, judgment on the merits was rendered on January 23, 1924, and on the same day plaintiff filed its affidavit for appeal from the judgment on the plea in abatement which was granted. The appeal was taken therefore less than sixty days before the first day of the next term of this court, being the March term, 1924, and was therefore returnable to the second term thereafter, or the October term, 1924.
The record shows that plaintiff filed in this court more than fifteen days prior to the October term, 1924, a certified copy of the record entry of judgment on both the plea in abatement and order granting appeal, as required by the statute. The case was not docketed for the October term, 1924, of this court but this fact is not controlling. The certified copy of the judgment was filed in this court fifteen days before the October term and this was the return term under the provisions of sections 1478 and 1479, Revised Statutes 1919, and was sufficient. The motion to affirm is accordingly overruled.
It is urged the court erred in refusing plaintiff's peremptory instruction offered at the close of all the evidence, because by giving the chattel mortgage to Columbar, defendant conveyed all his property which had not been previously encumbered, and that the effect was to hinder as well as delay defendants' creditors in the collection of their debts, and that the removal of the mules from Kibble's possession to that of Franklin removed and concealed the animals, the effect of which was to hinder and delay the creditors of defendants.
The grounds of the attachment are as stated in section 1725, Revised Statutes 1919, as follows:
5. Where the defendant is about to remove his property or effects out of this State, with intent to defraud, hinder or delay his creditors.
7. Where the defendant has fraudulently conveyed or assigned his property or effects, so as to hinder or delay his creditors.
8. Where the defendant has fraudulently concealed, removed or disposed of his property or effects so as to hinder or delay his creditors.
9. Where the defendant is about fraudulently to convey or assign his property or effects, so as to hinder or delay his creditors.
10. Where the defendant is about fraudulently to conceal, remove or dispose of his property or effects, so as to hinder or delay his creditors.
Plaintiff endeavors to eliminate all the grounds for attachment above mentioned except the 7th and 8th, by stating that the evidence was directed to these two grounds.
We have carefully read the entire record herein, and while it is shown that plaintiff's chief efforts in the attachment suit were directed to the establishment of said grounds 7 and 8, yet the remaining grounds were embodied in the pleadings and of course must remain an issue until by proper action they are eliminated therefrom. The record discloses that plaintiff's chief witness, Lenny Baldridge, cashier, was sharply...
To continue reading
Request your trial
-
Citizens Bank of Pleasant Hill v. Robinson
... ... renewal notes, cannot now raise the question for the first ... time in the appellate court. Williams v. Jenkins, 32 ... S.W.2d ... 1002; Purse v. Estes, 165 Mo. 58, 65 S.W. 245; ... Milan Bank v. Richmond, 280 Mo. 244, 217 S.W. 74; ... Gutzwiller v. Lackman, ... 22, 44 S.W.2d 9; ... First Natl. Bank of Milan v. Kibble, 221 Mo.App ... 311, 273 S.W. 148, affirmed on certiorari, 315 Mo. 966, ... ...
-
State v. First Nat. Bank
...to the Kansas City Court of Appeals from the judgment sustaining the plea in abatement, where the judgment was affirmed. 221 Mo. App. 311, 273 S. W. 148. The bank then made application to the Supreme Court for a writ of certiorari, and a preliminary writ was issued, but on final hearing thi......