Green v. Powell

• Citation: 46 S.W.2d 915
• Decision Date: 08 March 1932
• Docket Number: No. 21910.,21910.
• Parties: GREEN v. POWELL et al.
• Court: Court of Appeal of Missouri (US)

46 S.W.2d 915

GREEN v. POWELL et al.

No. 21910.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Rehearing Denied March 22, 1932.

Appeal from Circuit Court, Ralls County; Charles T. Hays, Judge.

"Not to be officially published."

Action by Emerson R. Green against Wallace Powell, defendant, and the Universal Credit Company, interpleader. Judgment for interpleader, and plaintiff appeals.

Affirmed.

Roy Hamlin, of Hannibal, for appellant.

Drake Watson, of New London, for respondent.

HAID, P. J.

This is an appeal from a judgment in favor of the interpleader. The case was tried by the court without a jury pursuant to the agreement of the parties. The facts as they appear from the record are as follows:

On April 22, 1930, the defendant, Wallace Powell, purchased a new 1930 Ford Tudor automobile through S. N. Glisson, as Glisson Motor Company, at Hannibal, Mo., paying in cash the sum of $188, and executing a chattel mortgage to Glisson Motor Company for $432, payable at the Universal Credit Company in twelve installments of $36 each, on the 22d day of each month succeeding the date of the purchase. This mortgage was recorded in Ralls county, October 11, 1930. By the terms of the mortgage, it was provided that the mortgagor "does hereby, grant, bargain, sell and mortgage unto said mortgagee, the above described personal property to have and to hold unto said mortgagee his personal representatives, successors and assigns forever." By subsequent provisions it was agreed that, if the mortgagor well and truly performed all agreements and covenants in the mortgage, that instrument should be void, otherwise to remain in full force and effect; that, in the event the mortgagor defaulted on any payment, or failed to comply with any condition of the mortgage, the full amount should be immediately due and payable; that the property should remain in possession of the mortgagor as long as the conditions of the mortgage should be fulfilled; that, if the mortgagor default in complying with the terms of the mortgage, the mortgagee should be entitled to the immediate possession of the automobile, possession by the mortgagor after default being unlawful.

The defendant defaulted in the payment due September 22, 1930. On September 23, 1930, the plaintiff filed his petition in the circuit court of Ralls county, alleging that on the 22d day of September, 1930, the defendant, while operating a motor vehicle in violation of the state law, did then and there unlawfully and wrongfully so operate the same as to run into and against an automobile operated by the plaintiff and damaged the same to the extent of $500. On the same day the plaintiff filed his affidavit for attachment, alleging seven grounds in support thereof: The nonresidence of the defendant; the defendant is concealed so that the ordinary process of law cannot be served upon him; that defendant has absconded and absented himself from New London, his usual place of abode; that he is about to remove his property and effects out of the state with the intent to defraud, hinder, and delay his creditors; that the defendant is about fraudulently to conceal, remove, and dispose of his property and effects so as to hinder and delay his creditors; that the damages for which the action is brought are for injuries arising from the commission of a felony; that the damages for which the action is brought are for injuries arising from the commission of a misdemeanor. In pursuance to the affidavit for attachment a summons and writ of attachment was issued, and on the same date the sheriff attached and took possession of said automobile.

On November 10, 1930, there was filed a stipulation in the suit signed by the attorney for the plaintiff and attorney for the defendant to the effect that the plaintiff should have judgment in the sum of $250 and costs. On November 14, 1930, the Universal Credit Company filed its plea in abatement to the attachment, alleging that each of the grounds alleged in the affidavit for attachment are not true.

On November 17, 1930, it was agreed in open court between the attorney for the plaintiff, the attorney for the defendant, and the attorney for the interpleader that the court make an order requiring the sheriff to sell the car and deposit the proceeds of the sale with the clerk pending the outcome of the case, and, in pursuance thereof, the sheriff did sell the automobile at public sale, and deposited the proceeds of the sale, $240, with the clerk of the court.

On March 13, 1931, the Universal Credit Company filed its amended interplea and answer alleging that it owned the automobile, and that neither the defendant, Powell, nor the plaintiff, Green, owned any interest therein; that defendant purchased the automobile and executed a chattel mortgage and note for the sum of $432, payable at the rate of $36 per month on May 22, 1930, and a like amount on the 22d day of each month thereafter, and alleging the further provisions of the mortgage; that there was then due upon such mortgage the sum of $288 and interest thereon from September 22, 1930; that the defendant led the seller of the machine to believe that he lived in Pike county, and, accordingly, the chattel mortgage was filed in that county, but that, immediately upon learning that there was a controversy about the residence of the defendant, said chattel mortgage was filed for record in Ralls county; that for value received the note and chattel mortgage was assigned, sold, and transferred to the interpleader; that on the date of the alleged attachment, and prior to the filing of plaintiff's suit, the defendant was in default in the payment of said monthly payments, and the whole debt became past due, and that, by reason thereof, the interpleader is entitled to the immediate possession of said automobile, and before and at the time of the first assertion of claim thereto by the plaintiff the title to the automobile and the ownership thereof was vested in the interpleader; that the plaintiff had never extended credit to said defendant in the belief that the defendant owned the clear complete title to the automobile, and has never parted with anything of value because of his relying on defendant's ownership of said car, has never in any way extended credit to said defendant, and is not an innocent purchaser for value of said car as against the claim and title of the interpleader; that the claim of plaintiff is not based on any contractual claim whatever.

It further alleges that the stipulation for judgment entered into by the plaintiff and defendant does not represent the fair settlement of said claim, and that, if there is any liability on the part of defendant to plaintiff, it is only for a small amount not in excess of $30; it denies that there is any liability of the defendant for said claim of plaintiff and that the stipulation is unfair and unreasonable and reached by means other than a reasonable settlement, and should not be permitted to stand. It denies each allegation of the plaintiff's petition, and prays that the lien of the above chattel mortgage to the extent of the unpaid balance be preserved as a prior lien to any claim of the plaintiff, and that the title to the automobile be adjudged in the interpleader.

The answer of the plaintiff to the amended interplea denied the existence of the chattel mortgage, and further that at all times mentioned in the pleading the defendant was a citizen and resident of Ralls county, and that at no time was there any chattel mortgage recorded in that...