Flint ex rel. Lumpkin v. Young

• Decision Date: 31 October 1879
• Citation: 70 Mo. 221
• Parties: FLINT ex rel. LUMPKIN v. YOUNG et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 221

FLINT ex rel. LUMPKIN

v.YOUNG et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

C. H. Mansur and L. T. Collier for appellants.

Shanklin, Low & McDougal for respondent.

NORTON, J.

This suit was originally brought in the circuit court of Daviess county, and subsequently removed by change of venue to the circuit court of Grundy county, where the same was tried at the January term, 1876, thereof. The petition alleges substantially that on the 22nd day of February, 1872, and long prior thereto, one George W. Lumpkin was the absolute owner and in possession of certain goods, wares and merchandise therein described; that on or about the 22nd day of February, 1872, Thomas J. Flint, as sheriff of Daviess county, and under and by virtue of an execution issued from the office of the clerk of the common pleas court of Livingston county, in favor of defendants Archibald Young et al. and against William I. Lumpkin, wrongfully and without leave, did seize, take and carry away the said personal property, the same being then and there the property of the said George W. Lumpkin; that, thereupon, the plaintiff, Lumpkin, duly notified the said Thomas J. Flint, as said sheriff, of his right therein and ownership in and to said personal property; and the said Flint having notified the plaintiffs in said execution of the claim of George W. Lumpkin to said property, thereupon the said Archibald Young and others, principals and securities, made, executed and delivered to said Thomas J. Flint, as said sheriff, their bond therewith filed, by which they bound themselves to the said Thomas J. Flint, as said sheriff, in the sum of $800 upon the conditions that if the said Archibald Young and others should pay all damages and costs which the said George W. Lumpkin might sustain in consequence of such seizure and sale made thereunder, then said bond was to be void, otherwise to remain in full force; that said bond was dated March 16th, 1872; that upon the execution and delivery of said bond to the said sheriff, Flint, he sold said property, and the same became and was a total loss to the said George W. Lumpkin; that defendants did not comply with the conditions of said bond, but a breach thereof was made in this: that said sheriff, Flint, did, on the 16th day of March, 1872, sell said property to the damage of said George W. Lumpkin in the sum of $800; and which defendants have failed and refused to pay, &c. wherefore, plaintiff says he has been damaged and prays judgment for the penalty of said bond and an assessment of damages, & c.

The answer of defendants denies that on the 22nd day of February, 1872, or at any other time, the said George W. Lumpkin was the owner or in possession of the said personal property, or that the same was worth more than $600. It admits the seizure and sale by the sheriff of said property to satisfy said execution, but denies that said acts were wrongful, or that George W. Lumpkin was in any wise injured thereby, and avers that the goods, at the time of their seizure and sale, were the property of William I. Lumpkin, the defendant in the execution. It also avers that a fraudulent combination existed between George W. Lumpkin and William I. Lumpkin to screen and protect the said property of William I. Lumpkin from liability to be subjected to the payment of his debts. The new matter set up in the answer was put in issue by replication, and on the trial plaintiff obtained judgment for $800, from which defendants have appealed.

There are only two points relied upon in the brief of counsel for the reversal of the judgment, the first of which is the refusal of the court to give the following instructions asked by defendants, viz: 5. “If, at the time the goods in question were seized by Sheriff Flint, William I. Lumpkin was in the exclusive possession of the same, or any part thereof, and said goods were so mixed and intermingled with the goods of said George W. Lumpkin (if any he had) as not to be distinguishable therefrom, with the knowledge...