Jackman v. St. Louis & H. R. Co.

• Decision Date: 16 June 1924
• Docket Number: No. 25077.,25077.
• Citation: 263 S.W. 230,304 Mo. 319
• Parties: JACKMAN v. LOUIS & H. R. C. et al.
• Court: Missouri Supreme Court

263 S.W. 230

304 Mo. 319

JACKMAN v. LOUIS & H. R. C. et al.

No. 25077.

Supreme Court of Missouri, Division No. 2.

June 5, 1924.

Rehearing Denied June 16, 1924.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Suit by Mary Jackman against the St. Louis & Hannibal Railroad Company and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

Ralph & Baxter, of Clayton, Mahan, Mahan & Fuller, of Hannibal, and Hostetter & Haley, of Bowling Green, for appellant.

Frank Howell, of Troy, A. E. L. Gardner, of Clayton, Henry S. Caulfield, of St. Louis, and Creech & Penn, of Troy, for respondent.

WHITE, J.

The plaintiff obtained judgment against the St. Louis I& Hannibal Railway Company, and seeks by this suit to subject to the payment of said judgment certain property of that company alleged to be in the hands of the St. Louis & Hannibal Railroad Company. For convenience hereafter we shall designate the defendants as the railway company and the railroad company.

In 1913 the plaintiff sued in the circuit court of Lincoln county for damages on account of personal injuries received while a passenger on the railway company. Two successive judgments obtained by plaintiff in that cause of action were reversed on appeal by the St. Louis Court of Appeals. She recovered a third judgment in September, 1919, in the sum of $12,000 and costs, which amounted to $1,652.70. That judgment was affirmed by this court May 20, 1921, 231 S. W. 978.

The railway company, at the time the plaintiff's cause of action accrued and until December, 1917, owned and operated a line of railway from Hannibal, Mo., to Gilmore, and also a branch line from Rails Junction to Perry, in Rails county. In 1886 the railway company executed a mortgage to secure certain bonds. This mortgage conveyed property of the railway company described as follows:

"* * * The railway of the said parties of the first part now constructed, and that may hereafter be constructed from the city of Hannibal in the state of Missouri through the counties of Marion, Rails, Pike, Lincoln, and St. Charles to a connection with the Wabash St. Louis & Pacific Railway at Gilmore Springs in the county of St. Charles a distance of eighty-one and three-quarters miles or thereabouts, together with all and singular the railroad, railways, rails, turnouts and side track bridges, fences, fixtures, buildings, lands for tracks, depots, tenements, appendages and appurtenances owned or hereafter to be acquired by the said parties of the first part; also all railway depots or stations with the buildings and fixtures thereon erected or to be erected together with the shops, machinery and tools, rolling stock and other corporate property incident or appurtenant to its operation, and all the chartered rights, franchises and privileges of said parties of the first part and all the estate, right, title and interest property claim and demand as well at law as in equity of the said parties of the first part to the same and every part and parcel thereof."

This mortgage was foreclosed in 1917. A second mortgage was executed by the railway company covering the same property, in May, 1893. The proceedings leading up to this foreclosure, the sale and approval of the same under decree, are unimportant for our purpose. In December, 1917, the railroad company was organized as a new corporation and, through foreclosure sale, acquired the property covered by the mortgage. The railroad company then took possession of the property and has since continued to operate the lines formerly belonging to the railway company. It is claimed by the plaintiff that certain property of the defendant railway company, not covered by the terms of the mortgage and available for the satisfaction of her judgment, was taken over by the railroad company and was in the possession of such company at the time judgment was rendered.

On appeal to the St. Louis Court of Appeals from one of the judgments which plaintiff obtained against the railway company United States Liberty bonds of the par value of $15,146.47 were deposited as indemnity to a surety company on the railway company's appeal bond. That case being reversed, the Liberty bonds were released and were in the hands of the railway company at the time of the mortgage foreclosure. Some time prior to May, 1916, a fine of $3,000 was imposed upon the railway company by the federal District Court for certain irregularities in the computation of freight rates. This fine afterwards was remitted by President Wilson, and the $3,000 returned to the railroad company after the foreclosure in 1920; also $45,648.62 in cash of the railway company, which was turned over to the railway company on the foreclosure.

These three items of property amounting in the aggregate to $63,795.09 was alleged by the plaintiff, and held by the trial court, to be the property of the judgment defendant railway company. It was adjudged that the plaintiff, Mary Jackman, on account of the said property in the hands of the railroad company, recover the amount of the judgment, with interest from its date until the same, and costs, should be paid. The railroad company appealed from that judgment.

I. The appellant in its brief sets out certain provisions in the decree of foreclosure which, it is claimed, describes all the property of the railway company, including the money and Liberty bonds mentioned in the plaintiff's petition. But it is not seriously contended, and was not contended in the oral argument of the case, that any property passed to the railroad company which was not described in the mortgage made by the railway company in 1886. Nor is it seriously disputed that any property of the railway company, not covered by the mortgage which fell into the hands of the railroad company, is subject to the payment of the plaintiff's judgment in this proceeding. Johnson v. United Railways Co., 281 Mo. 90, 219 S. W. 38; and Johnson v. United Railways Company, 247 Mo. 236, 152 S. W. 362, 374.

II. It remains to determine whether the property which the plaintiff seeks to have applied to the payment of her judgment was covered by the mortgage of 1886. The entire description is set out above. After describing the lines of railway, side tracks, fences, buildings, fixtures, etc., the words "appendages and appurtenances" are added. It is all made to apply to all such things "owned and to be acquired by the said parties of the first part." Then follow the descriptions of railway depots, stations, buildings, fixtures erected or to be erected thereon, with the shops, machinery, tools, and rolling stock, "and other corporate property incident or appurtenant to its operation." This requires a construction of the expressions, "appendages and appurtenances," and property "appurtenant to its operation." "Appurtenance" is defined as an appendage; "that which belongs to something else." 4 C. J. 1466. The United States Supreme Court in Humphreys v. McKissock, 140 U. S. 304, loc. cit....