Kelly-Goodfellow Shoe Co. v. Sally

• Decision Date: 17 October 1905
• Citation: 89 S.W. 889,114 Mo.App. 222
• Parties: KELLY-GOODFELLOW SHOE COMPANY, Respondent, v. SALLY, Defendant; HASSELL, Interpleader, Appellant
• Court: Missouri Court of Appeals

89 S.W. 889

114 Mo.App. 222

KELLY-GOODFELLOW SHOE COMPANY, Respondent, v. SALLY, Defendant; HASSELL, Interpleader, Appellant

Court of Appeals of Missouri, St. Louis

October 17, 1905

Appeal from Texas Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

J. B Harrison for appellant.

The amendment to our Constitution, adopted at the election held on the eighth day of November, 1900, became operative on the nineteenth day of December, 1900. State v. Kyle, 166 Mo. 287; Girdner v. Bryan, 94 Mo.App. 27. This verdict is not in accordance with the common law, nor it is in accordance with the act of the legislature.

Thomas M. & Cyrus H. Jones and Jamison & Thomas for respondent.

(1) The constitutional amendment of 1900 of section 25, permitting three-fourths of the jury of twelve men to find a verdict provides as follows: "The right of trial by jury as heretofore enjoyed, shall remain inviolate, but a jury for the trial of civil and criminal cases in courts not of record, may consist of less than twelve men as may be prescribed by law; and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases; and that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict." Session Acts 1899, p. 382. This constitutional amendment went into effect on the nineteenth day of December, 1900. State v Kyle, 168 Mo. 287; Girdner v. Bryan, 94 Mo.App. 27. (2) The verdict of the jury in this case was rendered on May 30, 1901. The law requiring that nine of the jurors shall sign the verdict was approved March 12, 1901 (Session Acts 1901), and did not go into effect until June 12, 1901. Art. 4, sec. 36 of the Constitution. The constitutional amendments above referred to having been in force and effect at the time of the rendition of the judgment, and the act above referred to approved March 1, 1901, not being in effect at the time of the rendition of the judgment, it was not necessary that all of the nine jurors sign the verdict. But even had the statute been in force directing that a verdict of three-fourths of the jury be signed by the nine, a failure so to sign would not render the verdict invalid. Gurley v. O'Dwyer, 61 Mo.App. 348; Morrison v. Overton, 20 Ia. 465; Paterson v. Murphy, 68 Ga. 281; Burton v. Bandies, 2 Tex. 203; Hardy v. State, 19 Ohio St. 579; Berry v. Pusey, 80 Ky. 166-170. (3) It is unquestionably the law of this State, that where one party asks the court to give a large number of instructions, as the interpleader did in this case, (the interpleader having asked fifteen instructions) the court has the right, and it is the better practice for the court to reject all of said instructions, and give its own instructions as to the law in the case. Gelvin v. Railroad, 21 Mo.App. 273; State v. Tomasitz, 144 Mo. 86; West v. West, 144 Mo. 119; State v. Easton, 138 Mo. 103; State v. Frazier, 137 Mo. 317; Desberger v. Harrington, 28 Mo.App. 632.

BLAND, P. J. Nortoni, J., concurs; Goode, J., not sitting.

OPINION

BLAND, P. J.

The following statement and opinion prepared by Judge REYBURN, when a member of this court, is adopted as the opinion of the court:

In November, 1898, plaintiff, an incorporated wholesale merchant of the city of St. Louis, brought an attachment suit against J. B. Sally, in the circuit court of Texas county, and caused the writ of attachment to be levied upon a stock of miscellaneous merchandise contained in a store at Arthurs Creek, situated in that county, invoiced and appraised by the sheriff at a total valuation of $ 1,540. N. C. Hassell interpleaded for the goods, and founded his claim thereto upon their purchase from the defendant, setting forth in his interplea that on November 12, 1897, and prior to the time of interpleading he conducted a general mercantile business near Arthurs Creek, and purchased from many merchants a large amount of goods and especially those attached; that he had bought the larger part of all such stock of goods from J. B. Sally but owed therefor to Sally or his assigns a note for over $ 3,000, given for goods purchased of him at different times. That such property had been unlawfully seized as the property of Sally, any interest or right of the latter therein was controverted, and the release of the levy, and the delivery of the stock to interpleader was prayed.

The answer of plaintiff specifically denied the ownership of interpleader, averred that the personalty was the property of the defendant, and their possession in Hassell for the purpose of assisting Sally in defrauding his creditors.

The third trial terminated in a verdict for the plaintiff in the attachment, two earlier jury trials failing to result in any verdict.

The testimony demonstrated that the interpleader had varied the occupation of a farmer in Texas county with peddling merchandise, and in August, 1897, built a storehouse near Arthurs Creek, and obtained the major part of the stock of merchandise that went into it from a general store at Lecoma, a village in Dent county, belonging to Sally, who lived, however, in Rolla, Phelps county. The store near Arthurs Creek was opened August 12th and the goods were obtained from Sally's stock from time to time till October 20th; on October 22d Sally appeared at Arthurs Creek with a statement, a settlement was had, a balance struck showing him a creditor of interpleader in a total sum, apparently $ 3,190, and the account closed by delivery by interpleader to Sally of a note for $ 3,060 bearing eight per cent interest maturing in one year, also checks aggregating $ 80 and $ 50 cash and receipt in full from Sally was returned. The testimony was voluminous and in hopeless conflict; at its close the interpleader asked fifteen instructions which, the court refused, and submitted the case in a charge to the jury, made up of a series of instructions which will presently be reverted to so far as deemed essential.

1. The sole issue involved in the controversy was whether Hassell had become owner of the goods attached by their purchase at intervals during the months of August, September and October preceding...