Moore v. Carlisle

• Decision Date: 25 February 1919
• Docket Number: No. 2395.,2395.
• Parties: MOORE v. CARLISLE.
• Court: Missouri Court of Appeals

209 S.W. 309

MOORE v. CARLISLE.

No. 2395.

Springfield Court of Appeals. Missouri.

February 25, 1919.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by John Moore against D. B. Carlisle. Plaintiff died after the case was instituted, and it was revived in the name of his administratrix, Louisa Moore. From the judgment rendered, defendant appeals. Affirmed.

John C. Dyott And N. B. Wilkinson, both of Willow Springs, for appellant.

M. E. Morrow, of West Plains, and Frank H. Braden, of St. Louis, for respondent.

BRADLEY, J.

This cause originated in a justice court in Howell county and is in replevin for the possession of a "certain yearling heifer calf" alleged to be of the value of $25. A change of venue took the cause to Greene county, where a trial before the court and a jury resulted in a verdict and judgment for the plaintiff. This judgment was set aside and the issues again submitted to the court without a jury on the evidence adduced at the jury trial and some additional evidence by depositions, and the court again found for the plaintiff. From the judgment rendered, defendant prosecutes this appeal.

Plaintiff, Moore, died since the cause was instituted and it was revived in the name of his administratrix. Plaintiff, who resided in the city of St. Louis, owned a ranch in Howell county. One H. A. Utterman lived on this ranch with his family and had charge of the ranch and some personal property of plaintiff situate thereon.

The calf in question once admittedly belonged to Utterman. In 1912 and 1913 Utterman became indebted to Moore, and on the 17th day of November, 1914, Utterman executed and delivered to Moore a bill of sale conveying ten head of cattle, mostly calves and yearlings, including the one in controversy, in payment of a debt of $150 that he owed Moore. The cattle were at the time on the ranch, and no actual, physical delivery of possession was made, except that the cattle conveyed were on plaintiff's ranch at the time and remained there. This bill of sale was duly acknowledged and recorded in the office of the recorder in Howell county. Utterman owed other debts. Among them was one to Protiva-Horack Company. This company reduced its demand against Utterman to judgment in a justice court, and under an execution based on said judgment the constable levied upon certain cattle, including the heifer in controversy. The bill of sale antedated the execution and levy. In pursuance of the execution and levy, the constable proceeded to sell the stock levied on, including the heifer in controversy, and the defendant was the purchaser of the heifer at the execution sale. This suit is one among many others brought by plaintiff to recover stock that he claims to be the owner of by virtue of the bill of sale here mentioned and another.

No declarations of law were asked or given, and, as we understand from the record, defendant does not challenge the bona fides of the debt Utterman owed plaintiff, but stands on the proposition that the consideration for the stock conveyed by the bill of sale was so inadequate as to bespeak fraud, and that no possession was delivered, and therefore the sale was void as to creditors.

We doubt if there is anything here for review. As stated, the cause was submitted to the court without a jury, and no declarations of law were asked and none given, and no finding of facts; hence the only possible question here is: Was there any substantial evidence to support the judgment rendered? Hanenkratt v. Brougham, 164 Mo. App. 108, 147 S. W. 1129; ...