Gross v. Merchants-Produce Bank

• Decision Date: 05 April 1965
• Docket Number: MERCHANTS-PRODUCE,No. 24184,24184
• Citation: 390 S.W.2d 591
• Court: Missouri Court of Appeals
• Parties: William P. GROSS, d/b/a Gross Auction Company, Respondent, v.BANK, a corporation, Appellant, Metal Goods Corporation, a corporation, Joseph T. Ryerson & Sons, Inc., a corporation, W. W. Grainger, Inc., a corporation, A. M. Castle & Co., a corporation, Frank A. Seested and Alice L. Seested, Josephine L. Dwyer, Respondents.

Page 591

390 S.W.2d 591

William P. GROSS, d/b/a Gross Auction Company, Respondent, v. MERCHANTS-PRODUCE BANK, a corporation, Appellant Metal Goods Corporation, a corporation, Joseph T. Ryerson &amp Sons, Inc., a corporation, W. W. Grainger, Inc., a corporation, A. M. Castle & Co., a corporation, Frank A Seested and Alice L. Seested, Josephine L. Dwyer, Respondents.

No. 24184.

Kansas City Court of Appeals, Missouri.

April 5, 1965.

Motion for Rehearing and for Transfer to Supreme Court

Denied June 7, 1965.

Application for Transfer Denied July 12, 1965.

Achtenberg, Sandler & Balkin, (Bernard L. Balkin) Kansas City, for appellant.

Casemore, Berman & DeLeve, Kansas City, amicus curiae.

Morrison, Hecker, Cozad & Morrison, Kansas City, amici curiae.

Downey, Sullivan & McCormick, Kansas City, for respondent.

HUNTER, Judge.

This appeal presents an apparently simple question requiring a difficult but long needed answer. The question is where is the proper place for the filing or recording of chattel mortgages on chattels located in this state and owned by a resident of Jackson County who lives outside of Range 33 in Jackson County. The answer requires a construction of our relevant recording statutes governing the place of filing of chattel mortgages in Jackson County, Missouri.

The facts are stipulated. William L. and Margaret A. Hale, husband and wife doing business as Special Equipment Manufacturing Company, defendants, executed a chattel mortgage, dated December 5, 1961, to secure payment of a promissory note for $11,474.00. Merchants-Produce Bank, appellant, was the payee and mortgagee. The chattel mortgage was filed of record in the Recorder's Office in the Jackson County Court House at Kansas City on December 6, 1961.

The Hales were residents of Jackson County, Missouri, residing in Range 32. The subject property (equipment) presumably was located in Range 33 in Kansas City, Jackson County.

On March 13, 1963, the note was in default and demand had been made by Merchants-Produce Bank on the Hales for payment of the $2,607.25 unpaid balance. The bank and the Hales consented in writing to a contract by the Hales with Gross Auction Company for the sale of equipment covered by the chattel mortgage, providing that Merchants-Produce Bank would be given a sufficient amount of money from the proceeds to liquidate the unpaid balance, ahead of any and all other liens.

On March 21, 1963, William P. Gross, plaintiff, conducted an auction sale of the property described in the chattel mortgage and the proceeds of the sale, after the deduction of 15% commission, amounted to $2,926.50. While this amount was in the hands of plaintiff, certain garnishments in aid of judgments against Hale d/b/a Special Equipment Manufacturing Company were issued and served on him by defendants W. W. Grainger, Inc., for $173.84 plus costs; by Joseph T. Ryerson & Sons, Inc., for $1,503.76 plus costs; by Frank A. Seested and Alice L. Seested and Josephine L. Dwyer for $1,311.50 and costs; by Metal Goods Corporation for $471.61 and costs; and by A. M. Castle & Co. for $1,472.10 and costs. Plaintiff interpleaded these defendants, all of whom asserted claims as mentioned.

The trial court ruled that the chattel mortgage of Merchants-Produce Bank was not properly filed, finding in essence that Section 59.163 of the recording statutes requires the filing in Range 32, the residence of the Hales. ¹ Judgment was accordingly rendered that the funds plaintiff had deposited with the circuit clerk be paid over to defendants in named amounts, after payment of court costs and a $450.00 attorney's fee. This appeal followed.

Respondents present several contentions apart from the merits of this suit. ² Noting that the judgment in the trial court was entered July 23, 1964, and that appellant filed its notice of appeal on August 27, 1964, respondents state Civil Rules 82.04 and 82.05, V.A.M.R. require where there is no motion for new trial that notice of appeal be filed not later than 10 days after entry of judgment or with leave of court within 30 days after entry of judgment. We find no merit in this contention. Civil Rule 82.04 provides. '* * * [n]o such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. * * *' Civil Rule 82.05(a) provides, 'For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed. * * *' The instant judgment entered on July 23, 1964, became final 30 days thereafter, on August 22, 1964. The notice of appeal filed on August 27, 1964, was filed within 10 days after the judgment became final.

Respondents further contend appellant has not preserved its allegations of error for appellate review because it failed to present to the trial court any error in a motion for new trial, citing Civil Rule 79.03 and Arnold v. Fisher, Mo.App., 359 S.W.2d 602. We find no merit in this contention. The case was tried to the circuit judge without a jury. The only evidence was a written stipulation of facts, including a number of documents. Civil Rule 73.01(d) concerning cases tried upon the facts without a jury provides that on review on appeal, 'The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.' And Civil Rule 79.03 concerning allegations of error that must be presented to the trial court in a motion for new trial specifically excepts from such requirement, '* * * questions of the sufficiency of the evidence to support the judgment in cases tried as provided by Rule 73.01 * * *.' The sole question of law presented to the trial court; namely, was the chattel mortgage in question filed at the proper place as provided by statute, and the trial court's judgment that it was not properly filed, is before us on appeal for our determination as to whether the evidence supports the judgment. If the evidence does not support the judgment it is our duty to enter the proper judgment or cause it to be entered. See Mortgomery v. Montgomery, Mo.App., 257 S.W.2d 189(1); Gower v. Lamb, Mo.App., 282 S.W.2d 867.

Respondents' third contention is that appellant in authorizing William Hale to contract for the sale of items covered by the chattel mortgage permitted Hale to dispose of items covered by the chattel mortgage and retain the benefits, thereby waived its lien rights. However, the transcript clearly discloses the note was in default and that the consent to the sale of the property was subject to an accounting of the proceeds and to the application of the proceeds to the mortgage debt. See, Hart v. Farmers' Bank of Bates County, Mo.App., 28 S.W.2d 121; State ex rel. Cantley v. Akin, 224 Mo.App. 114, 22 S.W.2d 836; Bruce v. Kays, 222 Mo.App. 77, 1 S.W.2d 214; Forgan v. Bridges, 222 Mo.App. 84, 281 S.W. 134, 14 C.J.S. Chattel Mortgages Sec. 262, page 874. Waiver is an affirmative defense. Civil Rule 55.10. Respondents neither pleaded waiver nor asserted it in the trial court. A new issue, an affirmative defense, not pleaded, presented, or passed on in the trial court, cannot be presented for the first time on appeal. Cleary v. Cleary, Mo.Sup., 273 S.W.2d 340.

We pass to a consideration of the merits of the question that was presented. Our function is to ascertain the legislative intent as expressed in the relevant statutes. We are aided by certain well established rules. One is that the statutes may be considered historically for whatever light may thereby be shed on the purpose and intent of the legislature in enacting the statutes. Accordingly, we review the history of the statutes concerning the recording of chattel mortgages in Jackson County.

By an act of the Missouri legislature of December 15, 1826, Jackson County, Missouri was declared to be created into a separate and distinct county and commissions were appointed to select 'the seat of justice' for the county. Laws of Missouri, 1826, page 30. Accordingly, the City of Independence was selected as the 'Seat of Justice' of Jackson County, and ever since has remained the county seat of Jackson County.

Since October 1, 1804, Missouri has had a statute, in substance the same as Section 59.120, RSMo 1959, V.A.M.S. stating 'The recorder shall keep his office at the seat of justice * * *.' 1 Terr.Laws Mo., p. 46, section 1.

In 1845 our legislature passed a general statewide recording statute, now Section 443.460. It provides, '* * * No mortgage or deed of trust of personal property hereafter made shall be valid against any other person than the parties thereto * * * unless the mortgage or deed of trust, or a true copy thereof, shall be filed in the office of the recorder of deeds of the county where the mortgagor or grantor executing the same resides, * * * and such mortgage or deed of trust, or copy thereof, may be so filed, although not acknowledge, and shall be as valid as though the instrument were fully spread upon the records of the county, * * * in the office of the recorder of deeds; and * * * when the same, or a copy thereof, shall have been filed, as above provided, shall thenceforth be notice of the contents thereof to all the world.'

It is well known, and we take judicial notice that thereafter the City of Kansas City grew to be the metropolis of Jackson County. With knowledge of this, and presumably to accommodate the situation, our legislature in 1873 enacted a statute, now Section 59.170 which provided: 'Branch office, Jackson County. The recorder of deeds for Jackson County, Missouri, shall open an office at Kansas City, in which shall be recorded all deeds of trust, mortgages and other instruments affecting real and personal property...