Jacques v. Goggin

• Citation: 362 Mo. 1005,245 S.W.2d 904
• Decision Date: 14 January 1952
• Docket Number: No. 2,No. 42075,42075,2
• Parties: JACQUES v. GOGGIN et al
• Court: United States State Supreme Court of Missouri

Page 904

245 S.W.2d 904

362 Mo. 1005

JACQUES v. GOGGIN et al.

No. 42075.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 11, 1952.

Moss H. Silverforb, Kansas City, for appellants.

Robert S. Burns, Kansas City, for respondent.

ELLISON, Judge.

This is a garnishment proceeding under execution instituted in the circuit court of Jackson County by the plaintiff-respondent Jacques, as judgment creditor of the Empire Printing Company, a dissolved corporation, against its trustees Mr. and Mrs. Robert Y. Goggin, and Samuel E. Segelbohm as garnishee--for whom his executor and executrix were substituted as defendants upon his death during the pendency of the litigation. These latter are the appellants here. The respondent Jacques claims as execution creditor the value of certain printing machinery and equipment of the Empire Printing Company and its trustees. The defendant-appellant garnishees claim the property under a chattel mortgage and replevin suit brought by Segelbohm and adjudicated in his favor before his death. The jury in the garnishment proceeding below returned a verdict for respondent Jacques in the sum of $9500.00. Hence this court has appellate jurisdiction under Art. V, Sec. 3, Const. Mo.1945, V.A.M.S.

The underlying indebtedness due respondent Jacques was a judgment in unlawful detainer in the amount of $9,330.54 with interest, for double the amount of rents and profits Sec. 2850, Mo.R.S.A., R.S.1949, Sec. 534.330, V.A.M.S., accrued on premises located at 718-20 Delaware Street in Kansas City, owned by Jacques and rented for a printing establishment to the Empire Printing Company, and later to its trustees, the defendants Goggins. The charter of the company was forfeited by the Secretary of State on January 1, 1941, and the printing business was thereafter conducted by its trustees, though for some time in its name.

The foregoing unlawful detainer suit was brought by respondent Jacques in a Justice of the Peace Court in Kansas City, and judgment was rendered for him on February 15, 1946. He filed a transcript thereof in the office of the circuit clerk over two years later, in September, 1948. An execution on the transcripted judgment was issued out of the circuit clerk's office the next month, directed to the two Goggins, trustees of the defunct corporation, together with a summons to Segelbohm as garnishee. Presently thereafter respondent Jacques filed interrogatories in the instant case addressed to Segelbohm, inquiring (among other things) whether he was indebted to the Goggins, as trustees, and whether he had taken from their possession an itemized list of machinery and equipment belonging to the Printing Company. These interrogatories, garnishee Segelbohm's answers thereto and plaintiff-respondent Jacques' replies constitute the pleadings in the case. R.S.Mo.1949, Secs. 525.130, 140, 190, V.A.M.S.

The assignments of error in the brief of the defendant-appellant garnishees complain that the trial court erred: (1) in trying the garnishment proceeding as a jury case instead of an equity case; (2) in directing the jury to find in favor of the plaintiff-respondent Jacques; (3) in admitting his testimony over the objections of the defendant-appellant garnishees; (4) in refusing the latter's request for a directed verdict at the close of all the evidence; (5) because under the undisputed evidence and the law the verdict and judgment should have been for them.

Segelbohm's answer to interrogatory No. 3 denied he was indebted to the Goggins as trustees, and claimed the itemized list of property (and more) under a chattel mortgage indefinitely alleged to have antedated January 14, 1946, to secure a promissory note payable to him, for $6096.45, with interest, aggregating about $8400 on that date, for money theretofore loaned 'said parties' [the printing company and its trustees], and prior to any claim of indebtedness made by plaintiff-respondent Jacques. As will be observed, this answer did not state the date of either the secured note or the chattel mortgage, except to say the latter antedated January 14, 1946 [which was the date of his replevin suit mentioned in the next paragraph hereof]. However he did allege that the chattel mortgage constituted a first lien on the itemized property; that the secured indebtedness was in default prior to that date; that he had theretofore demanded payment thereof, which was refused; and that he thereupon demanded possession of the encumbered property including that referred to above, which demand was refused.

Further garnishee Segelbohm alleged in his answer that on January 14, 1946, he instituted a replevin suit in the Jackson County circuit court, against the Printing Company and its trustees, for recovery of the specific property itemized in the foregoing chattel mortgage, nearly all of which is listed in appellant's interrogatory No. 3; that the defendants filed a general denial; and that the circuit court, Division 2, rendered judgment for him (Segelbohm) for possession of the property covered by the mortgage and described in respondent Jacques' petition herein, by stipulation of the parties on March 12, 1946. But this judgment made no provision as to the payment of money in lieu of the property, and respondent Jacques was not a party to the suit or stipulation.

Still further answering respondent's interrogatories 4-9, Segelbohm stated that he took possession of the replevined property but was unable to dispose of it for more than $5000 [less than 60% of the indebtedness due him on his said chattel mortgage note] and that at the time of answering he still had the property but would surrender it on payment of $9000, the amount then due on the note.

Respondent Jacques' amended reply to Segelbohm's answers to the foregoing interrogatories alleged that: at the time of the execution of the chattel mortgage and secured $6096.15 note given by the Empire Printing Company and its trustees to Segelbohm, its corporate charter had been forfeited by the Secretary of State on January 1, 1941, for failure to make reports as required by statute; that the defendants Goggins as trustees had no power or legal authority to execute the note and mortgage in the name of the corporation, or to place any lien on its assets; that said purported indebtedness secured by the chattel mortgage and other indebtedness claimed by Segelbohm in his answers was the indebtedness of the corporation, and all of its was created after the forfeiture of its charter.

Further the reply alleged that: said chatted mortgage was dated April 11, 1941, but was not filed of record until May 22, 1942, during which interval all or most of the indebtedness of the defunct corporation to respondent Jacques accrued; and that the $6096.15 note purportedly secured by said mortgage was dated January 22, 1942, over nine months after the date of the mortgage, in consequence of which the latter was wholly without consideration as to the Empire Printing Company and its trustees.

Continuing, respondent Jacques' amended reply alleged that he was not a party to Segelbohm's replevin suit and his rights were not adjudicated thereby; that said chattel mortgage was fraudulent as to him; that it was executed in manner and form as it was, and said indebtedness otherwise claimed, for the purpose of cheating and defrauding him, Jacques, of his rights against the Empire Printing Company; that said company as a corporation and the two Goggins as its trustees were not indebted to the garnishee Segelbohm in any sum whatever, and that he had no interest, equity or right in the corporation's property superior to the right of respondent Jacques.

Still further Jacques' amended reply alleged that Segelbohm had been in possession of all the machinery listed in his answer to the interrogatories since about May 6, 1946, after recovering it in his replevin suit; that it was then worth $12,500; that he had ever since been using it as his own and obtaining income therefrom, without foreclosing on it; that it had depreciated in value; and that his acts amounted to a conversion of the property. And the reply ended with a prayer for judgment against the appellants in the sum of $9,330.54, the amount of the judgment recovered by Jacques in his unlawful detainer suit, with interest at 6% from September 15, 1946. This date seemingly is erroneous since the date of Jacques' judgment against the Empire Printing Company in that suit was February 15, 1946.

The foregoing interrogatories, answers and replies do not give the date and termination of Jacques' written lease of the building to the Empire Printing Company, but the evidence shows it was dated August 31, 1940, and ran for five years beginning October 1, 1940 and ending September 30, 1945, and called for an aggregate rental of $5040 payable on a rising scale per month each two years after the first year. The cause was tried to a jury in April, 1950. Some evidence was introduced at the trial. It will be referred to if and as necessary in this opinion.

Appellants' brief makes no reference to their five 'Assignments of Error,' as set out in the beginning of this opinion. We shall, therefore, not refer to them. Our discussion will be confined to the 'Points and Authorities' in their brief. The first of these is that the 'Judgment against garnishees (appellants) for a certain amount of money upon a directed verdict or peremptory instruction was erroneous. There must be a finding of amount of property held and an order and refusal or failure to pay it into court before a direct judgment can be rendered against any garnishee.'

On this point appellants cite the first of the three statutes listed below. ¹ Quoting substantially, it provides that if upon the trial of a garnishment proceeding it appears that property, effects or money of the defendant are found in the hands of the garnishee, the court or jury shall...