Mergenthaler Linotype Co. v. Kebby

• Decision Date: 04 January 1941
• Docket Number: No. 37302.,37302.
• Citation: 146 S.W.2d 595
• Parties: MERGENTHALER LINOTYPE CO. v. KEBBY.
• Court: Missouri Supreme Court

146 S.W.2d 595

MERGENTHALER LINOTYPE CO. v. KEBBY.

No. 37302.

Supreme Court of Missouri, Division No. 1.

January 4, 1941.

Appeal from Circuit Court, DeKalb County; R. B. Bridgeman, Judge.

Action by the Mergenthaler Linotype Company against Earl W. Kebby to foreclose a chattel mortgage. A judgment of the Kansas City Court of Appeals, 139 S.W. 2d 549, reversed and remanded a judgment in favor of defendant, and the case was transferred to the Supreme Court.

Judgment of trial court reversed and remanded, with directions.

Howard W. Grant, of Kansas City, for appellant.

DALTON, Commissioner.

This is an action to foreclose a chattel mortgage. The trial court sustained a demurrer to the petition, plaintiff refused to plead further, and the court entered judgment dismissing the cause. Plaintiff appealed to the Kansas City Court of Appeals. That court reversed and remanded the cause, but transferred the case here on the ground that its opinion was in conflict with an opinion of the St. Louis Court of Appeals in the case of Figgins v. Mundy, Adm'r, 227 Mo.App. 1091, 59 S.W.2d 766. In view of the Court of Appeals' holding that such conflict exists, the certification was authorized and we have jurisdiction. Art. 6, § 6, Amendment of 1884 to Constitution, 15 Mo.St.Ann. p. 647.

"Where a case is transferred from a Court of Appeals to the Supreme Court, the latter becomes possessed of full and complete jurisdiction to hear and determine the cause or proceeding as in a case where jurisdiction is acquired by ordinary appellate process." Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927, 928.

This action was commenced August 31, 1938, to foreclose a chattel mortgage dated March 25, 1927. The petition recites that the chattel mortgage was duly recorded in the office of the Recorder of Deeds of De Kalb County on April 16, 1927. The chattel mortgage originally secured 51 notes for $25 each, but it is alleged that all have been paid, "except those due on May 15th, June 15th and August 15th, 1931, and except $2.05 of the note due on April 15th, 1931," making a total of $77.05, plus interest at 6 per cent per annum from September 1, 1933. It is further alleged that defendant has acquired and is in possession of the personal property described in the chattel mortgage. Plaintiff prays that the equity of redemption be foreclosed, and that plaintiff be awarded judgment for the debt, damages, costs and attorney's fees to be levied out of the mortgaged property. For a more detailed statement of facts reference is made to the opinion of the Kansas City Court of Appeals. Mergenthaler Linotype Co. v. Kebby, 139 S.W.2d 549, 550.

The demurrer to the petition contains four subdivisions but they may be summarized under two heads, (1) that the petition failed to state facts sufficient to constitute a cause of action, and (2) that the action was barred by the five-year statute of limitations provided in Sec. 2259, R.S. 1919 (now Sec. 3100, R.S.1929, Mo.St.Ann. § 3100, p. 1925), which said section 2259 was alleged to have been "in force and effect at the time said instrument was executed, and at the time of the filing of same."

The trial court did not indicate the ground upon which the demurrer was sustained and respondent has not favored us with a brief. We are of the opinion, however, that the petition is sufficient, unless the action is barred by limitations, and it is only necessary to consider the second ground. With reference to the sufficiency of the petition as against this contention, with some modifications, we adopt and approve a portion of the opinion of the Kansas City Court of Appeals. The portion we have modified is not within quotation marks.

Sec. 3097, R.S.1929, Mo.St.Ann. § 3097, p. 1919, provides two methods by which constructive notice of chattel mortgages may be given to all persons. "The first is that the instrument be acknowledged or proved and recorded in such manner as the conveyances of land are by law directed to be acknowledged or proved and recorded. The other that the chattel mortgage, or a copy thereof, which copy need not even be acknowledged, be filed in the office of the Recorder of Deeds and kept in his office for the inspection of all persons.

"It would appear that section 3100, by its terms, has reference to mortgages or deeds of trust filed (as distinguished from recorded) in the office of the Recorder of Deeds."

Section 3100, R.S.1929, Mo.St.Ann. § 3100, p. 1925, provides the following: "Every such mortgage or deed of trust, where the original or a copy shall have been filed, as herein provided, shall cease to be valid as against the mortgagor or the person making the same, or subsequent purchasers or mortgagees in good faith, after the expiration of five years from the filing of the same, * * *." (Italics ours).

"It says nothing about such conveyances being acknowledged or proved and recorded. The language used in section 3100 is not indefinite or ambiguous and it is well settled that actions and proceedings not clearly within the terms of statutes of limitations cannot be brought in by reason of extending the application of the statute through construction. Macon County v. Farmers' Trust Co., 325 Mo. 784, 793, 29 S.W.2d 1096.

"An examination of the history of these statutes confirms our judgment as to their meaning. That part of the section of our statute, now section 3097, which provides for the acknowledgment and recording of chattel mortgages, was first enacted in 1845 (R.S.1845, pages 527, 528). It originally required chattel mortgages, in order to constitute constructive notice, to be acknowledged or proved and recorded. This section of the statute remained the same until 1895 (see Laws 1895, page 179), when the legislature added a provision making the filing with the Recorder of a chattel mortgage, or a copy thereof, constructive notice. Section 3 of the act of 1895, provides as follows: `Every such mortgage or deed of trust, where the original or a copy shall have been filed, as herein provided, shall cease to be valid as against the mortgagor or the person making the same, or subsequent purchasers or mortgages in good faith, after the expiration of five years from the filing of the same.' (Italics ours.)

"So an examination of the act of 1895 clearly shows that the statute of limitations contained in ...