Hockaday v. Gilham
| Decision Date | 13 December 1920 |
| Citation | 226 S.W. 991,206 Mo.App. 132 |
| Parties | LEON M. HOCKADAY, Respondent, v. MARY J. GILHAM and JAMES A. LEWIS, Defendants, W. P. HOUSTON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson County Circuit Court.--Hon. Harris Robinson Judge.
AFFIRMED.
Judgment affirmed.
Hutton Davis, Nourse & Bell, for respondent.
Heidelberger & Houston, for appellant.
This is a suit for conversion brought against the appellant, W. P. Houston, Mary J. Gilham and James A. Lewis. Plaintiff dismissed as to Lewis. There was a verdict and judgment in favor of Mrs. Gilham but against Houston in the sum of $ 925.
The facts show that plaintiff was the owner of a stock of merchandise located in a store building owned by Mrs. Gilham at Belton, Missouri. This store was described as a variety store and the stock consisted of dry goods, millinery, notions and the like, to be sold at retail. Appellant Houston resided at Belton and was the agent of Mrs. Gilham in renting her property and he collected the rent therefor. On the last day of January, 1918, plaintiff discontinued business and locked his store. He resided in Belton, two blocks from the store, until February 11, 1918, when he moved to Kansas City. Within a week after he left Belton he sent the key to appellant Houston so that the latter could show the building to prospective tenants. Plaintiff intended to vacate the building. Sometime in February a constable placed a notice on the outside door of the store reciting that a levy on the contents of the store had been made under certain executions and notifying the public that he would sell the property on March 2, 1918, "to satisfy said executions and costs."
Appellant testified that he was employed by attorney Byram, of Harrisonville, to look after the matter of the sale of the goods to satisfy judgments held by clients of Byram. There is no evidence that the constable authorized Houston to conduct a sale. Houston advertised in a Belton paper that he, as agent, would sell the merchandise in the store on March 1, 1918. The advertisement stated that the sale in the forenoon would be private and at auction in the afternoon and at night. It was signed, "W. P. Houston, agent" and by Lewis auctioneer. Plaintiff, learning that Houston was going to sell his goods, sent his attorney to Belton to prevent the sale. When his attorney reached Belton Houston was in the process of selling the goods by piece through the auctioneer Lewis. When Houston was requested by plaintiff's attorney to stop the sale he refused to do so, Houston claiming that he was selling the stock for Mrs. Gilham to satisfy rent due her. The constable disclaimed to plaintiff's attorney any part in the sale.
Although Mrs. Gilham was present during part of the sale appellant assumed all responsibility for the sale and stated to plaintiff's attorney that he had hired Lewis as auctioneer. The property brought a total of $ 161.57. This suit was brought in Jackson county where defendant Mary J. Gilham resided. Defendants Houston and Lewis, resided in Cass county. The joint answer of Houston and Lewis pleaded in defense that the sale was made under an execution which defense was coupled with a plea in abatement to the jurisdiction of the court, alleging that defendants, Houston and Lewis, were not residents of Jackson county and that there was no joint liability between them and Mrs. Gilham.
Appellant's first point is that the court erred in amending his instruction covering his defense based upon a lack of jurisdiction in the trial court. There was no error in regard to this matter. The court should not have submitted the question of its jurisdiction to the jury in any event. Even if the instruction as it was submitted to the jury did not properly declare the law and was indefinite and incomplete, it did not mislead the jury as to the real issue, plaintiff's damages.
Section 1751, Revised Statutes, 1909, provides that suits shall be brought, "first, where the defendant is a resident of the State, either the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, where there are several defendants and they reside in different counties, the suit may be brought in any such county." The second clause of this statute contemplates a case where there is a joint liability on the part of all of the defendants. [Graham v. Ringo, 67 Mo. 324; State ex rel. Jackson v. Bradley, 193 Mo. 33, 40, 91 S.W. 483.] There is no question but that where there is no such liability a defendant, non-resident of the county where the suit is brought, cannot be joined. Where there is no joint liability, if the same does not appear on the face of the petition, it may be taken advantage of by answer where it may be joined with a plea to the merits. [Christian v. Williams, 35 Mo.App. 297, 307; State ex rel. v. Shelton, 249 Mo. 660, 684, 156 S.W. 955.] However, it was the duty of the trial court to settle the matter of its jurisdiction before going into a trial on the merits for such a trial assumes that the court has jurisdiction at every step, and if the defendant asserting a lack of jurisdiction enters into a trial on the merits without calling the court's attention to his plea to the jurisdiction, he waives the jurisdictional defect of improper venue. In this case appellant Houston entered into the trial on its merits and did not call the court's attention to the plea to the jurisdiction until after the close of plaintiff's case and appellant's demurrer to plaintiff's evidence had been overruled. We think that under such circumstances there is no question but that the jurisdictional plea was waived. [Byler v. Jones, 79 Mo. 261, 264; Christian v. Williams, supra, l. c. 307; Harrison v. Murphy, 106 Mo.App. 465, 470, 80 S.W. 724; Dudley v. Railroad, 238 Mo. 184, 187; Roberts v. Amer. National Assurance Co., 212 S.W. 390, 394; Haseltine v. Messmore, 184 Mo. 298, 82 S.W. 115.]
The court did not err in instructing the jury that a constable's sale was not shown to have been had and conducted according to law and for it to disregard all testimony offered bearing upon that point. There was no judgment shown or an execution upon any judgment, there was no showing of any advertisement of the sale under an execution as provided by section 7548, Revised Statutes, 1909, nor was there any showing of any sale such as is provided by section 7549, Revised Statutes, 1909, or any return of the constable offered to show any sale. In short, appellant wholly failed to show a sale under an execution upon a judgment of any court, and no excuse for his sale of the goods appears. He was clearly guilty of a conversion of the goods. Under the circumstances the only matter that should have been submitted to the jury was the measure of damages. Of course the notice signed by the constable posted upon the door of the store did not tend to show that the auction sale was publicly and fairly conducted as claimed by the appellant.
Complaint is made of plaintiff's instruction on the measure of damages which told the jury that if they found for the plaintiff to assess the damages "in such amount, if any you find...
To continue reading
Request your trial