Fitzroy v. People's Bank of Cardwell

• Decision Date: 08 November 1921
• Docket Number: No. 16484.,16484.
• Parties: FITZROY v. PEOPLE'S BANK OF CARDWELL
• Court: Missouri Court of Appeals

234 S.W. 865

FITZROY v. PEOPLE'S BANK OF CARDWELL

No. 16484.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Appeal from Circuit Court, Ste. Genevieve County; Peter H. Huck, Judge.

"Not to be officially published."

Action by D. R. Fitzroy against the People's Bank of Cardwell: Judgment for defendant and plaintiff appeals. Affirmed.

Lee A. Hall, of St. Louis, and Orville Zimmerman, of Kennett, for appellant.

McKay & Jones, of Kennett, for respondent.

BIGGS, C.

This action for conversion, in which plaintiff claims damages on account of the defendant unlawfully converting to its own use certain chattels, resulted in a verdict and judgment for defendant, from which the plaintiff appeals.

In the spring of 1913 plaintiff held a chattel mortgage upon a certain sawmill and appurtenances belonging to the Arkmo Sawmill Company to secure the payment of certain promissory notes. Default having been made in the payment of some of the notes, plaintiff took possession of the mortgaged property under the mortgage and advertised it for sale in a newspaper and by posting notices on the property. The defendant, during the period the advertisement was running, instituted a suit against the said Arkmo Sawmill Company upon an indebtedness alleged to be due to it, caused a writ of attachment to be issued, and directed the sheriff to take charge of the property advertised under plaintiff's chattel mortgage. Shortly thereafter the Arkmo Sawmill Company was declared a bankrupt, and the property was taken over by a trustee in bankruptcy. Plaintiff thereupon filed his claim for a preference in the mortgaged property by virtue of his chattel mortgage. After a trial before the referee in bankruptcy, and upon objections being filed by this defendant, the mortgage was declared invalid, but upon a petition for review the United States District Court overruled the finding of the referee and upheld the validity of the mortgage. Pending the litigation before the referee and in the district court the property covered by the mortgage was sold by the trustee in bankruptcy upon order of the referee, and at said sale the property was sold for the sum of $782.92. Plaintiff having established the validity of his mortgage and being entitled to a preference, this sum was accepted by the plaintiff in lieu of the mortgaged property.

Thereafter the plaintiff instituted this suit against the defendant bank, alleging damages because of the issuance of the writ of attachment, claiming that by virtue of such writ the...