Hart v. Farmers' Bank of Bates County

• Decision Date: 07 April 1930
• Docket Number: No. 16730.,16730.
• Citation: 28 S.W.2d 121
• Parties: HART v. FARMERS' BANK OF BATES COUNTY.
• Court: Missouri Court of Appeals

28 S.W.2d 121

HART v. FARMERS' BANK OF BATES COUNTY.

No. 16730.

Kansas City Court of Appeals. Missouri.

April 7, 1930.

Rehearing Denied May 5, 1930.

Appeal from Circuit Court, Vernon County; C. A. Hendricks, Judge.

"Not to be officially published."

Garnishment proceedings by Clark Hart against C. C. Clampitt, defendant, and Charles Frank, garnishee, in which the Farmers' Bank of Bates County interpleaded. From a judgment against the interpleader, it appeals.

Affirmed.

W. O. Jackson and D. C. Chastain, both of Butler, for appellant.

De Armond & Maxey, of Butler, for respondent.

BARNETT, C.

This is an appeal from a judgment against the Farmers' Bank of Bates County, Mo., as interpleader in a garnishment proceeding against Charles Frank, garnishee of C. C. Clampitt. Clark Hart obtained a judgment against Clampitt, which was rendered by a justice of the peace in January, 1927. On September 6, 1927, an execution was issued upon the judgment, and pursuant to that execution the constable summoned Charles Frank as garnishee. At that time Frank was acting as clerk of a sale of certain property on the farm occupied by Clampitt. In answer to interrogatories the clerk answered that at the time of the service of the garnishment he had in his possession, or under his control, property, money, or effects of defendant; that he did not know the amount; that from the sale he collected and turned over to the Farmers' Bank of Bates County, as mortgagee, $3,159.30; that part of the property sold at the sale was not the property of C. C. Clampitt, but that the proceeds were in the above amount; that he did not at the time of the garnishment owe defendant any money and did not owe him any at the time of filing the interrogatories; that C. C. Clampitt advised him that the Farmers' Bank of Bates County held a mortgage upon all of his property. Plaintiff filed a denial of the garnishee's answer.

Thereafter, the Farmers' Bank filed an interplea with the justice, in which it is alleged that the bank received from the clerk of Clampitt's sale the sum of $3,159.30; that it held chattel mortgages on the personal property of Clampitt in excess of the amount received, which mortgages were duly filed in the office of the recorder of deeds of Bates county, Mo., of which county Clampitt was a resident. It was alleged that Clampitt, with the consent of the interpleader, advertised a public sale to raise money to pay the interpleader, and that the bank consented that at the sale the property upon which it held mortgages might be sold and the money arising from the sale applied upon the payment of the mortgages; that $2,208.55 arose from the sale of property upon which interpleader held mortgage liens, and the money was applied in payment of the mortgage debt; that other sums of money arose from the sale of property that did not belong to Clampitt and was turned over to the owners of the property so sold; that $61.50 was realized from the sale of property belonging to Clampitt upon which there was no mortgage to the interpleader. Clampitt filed a claim for the $61.50, alleging that he was the head of a family, and that this amount was exempt. Judgment was rendered in favor of the interpleader by the justice, and $61.50 was allowed to Clampitt under his claim of exemptions, and the cause was appealed to the circuit court.

The case was tried de novo in the circuit court. The interpleader introduced testimony concerning the issue of the execution, and that the garnishee was summoned, and that Mr. Clampitt lived in Bates county and was the head of a family. The clerk testified that he did not know what property belonging to Clampitt was sold after the garnishment was served, and that he deposited the proceeds of the sale with the bank; that the total amount of the sale was $4,004.30, less $901.75. The advertisement of the sale was offered in evidence in which it was recited that there would be a public sale for cash of 41 head of cattle, consisting of heifer calves, 4 two year old heifers, 11 one year old heifers, 3 heifer calves, 2 male calves, 1 pure-bred 8 months old male, and 1 three year old pure-bred male; 70 hogs, consisting of 70 spring shoats; 12 brood sows, one with 10 pigs and one with 11 pigs, 1 Duroc male; horses and mules, consisting of 1 pair of brown horse mules, 5 years old, 1 mare mule, 1 black horse mule, 2 brown mare mules, 2 bay horses, 1 saddle mare, 1 sorrell saddle mare; 700 Plymouth Rock chickens; implements, consisting of 7-foot McCormack binder, Baskett hayrack and wagon, 2 Bain wagons, 2 gang plows, 2 sulky plows, 1 12-foot harrow, 1 International riding cultivator, 1 David Bradley disc, 1 end gate seeder, 1 saddle and bridle, 4 sets of work harness; hay and grain, consisting of 60 acres of corn in the field, one-half interest in 55 acres of timothy in shock, 40 acres of bundle oats in barn, 5 tons of timothy hay in barn, and 80 acres of soy beans. Other property was described in the sale bill, but there is no contention upon this appeal that such property was subject to the lien of the bank's mortgage. The clerk testified that the amount of money he turned over to the bank was $3,159.30, which included something more than $900 "to other parties"; that $845 of the amounts bid at the sale was unpaid.

The interpleader offered in evidence a chattel mortgage dated January 27, 1927, which recited that it secured promissory notes of that date in the sum of $2,870, which conveyed certain property which was recited to be in the possession of the parties of the first part (C. C. Clampitt and wife) owned entirely by them, and it was also recited that the property was to remain in possession of the mortgagor until default be made in payment of the debt and interest or any part thereof. It provided that, upon removal or any attempt to remove the property from its present location, the mortgage might be foreclosed. Aside from the recitals above mentioned, the property was described in the general terms so often employed in drawing chattel mortgages. The description of the property was very lengthy, and we will not set it out in full, but the description of the first few items is set out as a general indication of the manner in which the chattels were described:

                ======================================================
                 Kind of                        Name of whom
                property.  Age.    Color.         obtained.   Value
                ------------------------------------------------------
                6 cows      4    Yellow Jersey                $300.00
                1 cow       4    Reddish Black                  50.00
                1 cow       4    Dark Jersey                    50.00
                1 cow       3    Jersey          Jim Wolf       75.00
                ------------------------------------------------------
                

The court sustained an objection to the introduction of the mortgage. A second mortgage was offered in evidence which recited that it secured three promissory notes in the total sum of $1,686.15. It contained the same recitation concerning possession, ownership, and the effect of removal or attempt to remove the property, and it described...