McGeorge v. Danforth, 21254.

• Decision Date: 16 June 1931
• Docket Number: No. 21254.,21254.
• Citation: 39 S.W.2d 565
• Parties: McGEORGE et al. v. DANFORTH.
• Court: Missouri Court of Appeals

39 S.W.2d 565

McGEORGE et al. v. DANFORTH.

No. 21254.

St. Louis Court of Appeals. Missouri.

June 16, 1931.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by W. P. McGeorge and others, copartners, doing business under the firm name of W. P. McGeorge & Co., against Charles A. Danforth. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellant.

F. W. Jenny, of Union, and James Booth, of Pacific, for respondents.

NIPPER, J.

This is an action in trover for the conversion of certain personal property consisting of road machinery, equipment and tools of the alleged value of $5,000. The trial, before the court, without a jury, resulted in a judgment for plaintiffs in the sum of $1,000. From this judgment the defendant has appealed.

The plaintiffs in the case are copartners, doing business under the firm name of W. P. McGeorge & Co. They did certain work on a state highway in Franklin county, under the firm name, in 1926 and 1927, and owned and used the road machinery, equipment and tools described in the petition in this action. At the conclusion of the work, in the latter part of 1927, they left their property in possession of a man in Franklin county in and near the road they had completed. Afterwards, Charles Vogt, Edward Reed, and Ernst Schultze brought separate suits against plaintiffs in this action, each party claiming in the neighborhood of $100. Their actions were commenced in the circuit court of Franklin county, and they sued W. P. McGeorge & Co., as a corporation.

It appears from the testimony of defendant's counsel that one of the defendants, while this suit was pending, requested him to agree to a continuance of the case, although this is positively denied by defendant Markham. The case was then continued to the March term, 1928, and, some time after such order was made, counsel for defendant in this action, and for Reed, Vogt, and Schultze in their actions against plaintiffs, told the clerk that the order continuing the case should read that it was by consent, and had the clerk to write "by consent" in ink. There is nothing in the judgment roll, or any of the minutes, to show that the continuance was by consent, and the only contention that there was such authority for such entry was that one of the defendants had made such an agreement, or request, of defendant's counsel.

At the March term, Reed, Vogt, and Schultze asked permission of the court to file an amended petition, so as to sue plaintiffs in this action as a partnership instead of a corporation. No amended petition was ever filed; nor was any service ever had upon plaintiffs as a partnership. In fact, plaintiffs were never sued as a partnership, because no amended petition was ever filed in the case. Neither of the plaintiffs appeared or made any defense to the action. Judgment was taken against plaintiffs by default, and a judgment which had been formerly entered against W. P. McGeorge & Co., a corporation, was amended by a nunc pro tunc entry, so as to be a judgment against plaintiffs as a copartnership.

On the 21st of February, 1929, Schultze, Reed, and Vogt sued out a writ of execution, the property was levied upon by the sheriff of Franklin county and sold, and defendant became the purchaser.

Now, it is defendant's contention that he was entitled to the possession of this property, and that plaintiffs were not the owners, and that the court should have given a peremptory instruction to find for defendant at the close of plaintiffs' case, because the judgment against plaintiffs in the original action was binding and cannot be attacked in a collateral...