Moore v. Securities Credit Co.

• Decision Date: 23 December 1971
• Docket Number: No. 33829,33829
• Citation: 475 S.W.2d 430
• Parties: James MOORE, Plaintiff-Appellant, v. SECURITIES CREDIT COMPANY and Circle Finance Company of St. Louis, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 430

475 S.W.2d 430

James MOORE, Plaintiff-Appellant, v. SECURITIES CREDIT COMPANY and Circle Finance Company of St Louis, Defendants-Respondents.

No. 33829.

St. Louis Court of Appeals, Missouri.

Dec. 23, 1971.

Motion for Rehearing or to Transfer to Supreme Court Denied

Jan. 20, 1972.

Application to Transfer Denied Feb. 22, 1972.

Sen. Raymond Howard, St. Louis, for plaintiff-appellant.

Hall, Reaban, Seigel & Hyatt, Eli C. Seigel, St. Louis, for defendants-respondents.

JAMES RUDDY, Special Judge.

This appeal arises out of a suit against two corporations alleging a false return having been made by a special deputy appointed under § 517.100, RSMo., V.A.M.S. Plaintiff's (Appellant) petition alleged that on the 7th day of April, 1965, defendants (Respondents) had a special deputy named Grant Williams appointed to summon plaintiff in a suit on a note. Said special deputy made a written return that he left the summons with Mrs. Louise Moore, wife of the plaintiff, on the 7th day of April 1965. The petition alleged that the defendants, nor their appointed special deputy, never served a summons upon plaintiff nor his wife in any manner or on any date and that said return by defendants' special deputy was false.

The evidence showed that respondents, Securities Credit Company and Circle Finance Company of St. Louis, had filed suit against the appellant in the Magistrate Court of the City of St. Louis, being designated as Cause No. 76688--D and styled as Securities Credit Company, a corporation, vs. James Moore. The magistrate file reflected there were two unsuccessful attempts by the constable to serve summons of process in that case upon the appellant. Thereafter, at the request of the respondents, a special Deputy Constable was designated by respondents to serve said summons. On April 7, 1965 the special deputy made a written return stating that the summons had been left with Mrs. Louise Moore, wife of the appellant. On July 20, 1965 a default judgment was rendered against the appellant in said magistrate case in the amount of Two Hundred Thirty-Four Dollars and Eighteen Cents ($234.18) and court costs. The special deputy was appointed on behalf of respondents pursuant to § 517.100, RSMo., V.A.M.S. Subsequent to the default judgment being entered there were four executions run on plaintiff's salary at various times. The amount withheld from his salary was approximately Eighty-Two Dollars and Thirty-Three Cents ($82.33) which was paid into court by Knodel's Bakery, his employer.

There was further evidence that a James T. Moore (not the appellant) had consulted an attorney with reference to a summons he had received in a suit filed by the respondents. However, the attorney stated that the appellant was not the same James T. Moore who had consulted with him. The attorney drafted an affidavit on behalf of that James T. Moore, denying any indebtedness or responsibility to the respondents and this affidavit was accepted by the respondents. There was further evidence that the judgment that the respondents obtained was founded upon a note with was purchased by the respondents from the 'John Hancock Institute'. Plaintiff testified his full name was James Moore, having no middle initial, and that he resided at 1298 Hamilton in the City of St. Louis since August of 1964. He testified he had never signed any promissory note with the Securities Credit Company, the defendant in this lawsuit, or the Circle Finance Company, its successor corporation. He further testified that he had never had any dealings with this company in any way, shape or form, and that he had not signed a note for them on April 23, 1963 in the amount of Two Hundred Thirty-Four Dollars and Eighteen Cents ($234.18) and he had never received any money from them. He testified he was never served with a summons on April 7, 1965, and at that time he did not live at 1121 North 8th Street, Apartment 501, but at that date was living at 1305 Hamilton Avenue. He further testified his wife Louise had passed away in February of 1964 and she was deceased on April 7, 1965, the date of the alleged service. His first knowledge of any suit against him was when a garnishment was run against his employer, Knodel's Bakery. After the first garnishment was run and a certain amount was deducted from his salary he spoke to someone at Securities Credit Company and advised them that he did not owe them anything and that he had never been served with any papers. They advised him that a Mr. Grant Williams had served him with the papers on April 7, 1965. They further refused to withdraw the garnishment.

The jury returned a verdict in favor of the appellant and against the respondents in the amount of Three Thousand Dollars ($3,00.00) actual damages and Forty-Five Hundred Dollars ($4,500.00) punitive damages, making a total aggregate judgment in the amount of Seventy-Five Hundred Dollars ($7,500.00). The respondents thereafter filed a motion for judgment in accordance with their motions for a directed verdict at the close of the plaintiff's case and at the close of the entire case, and this motion was subsequently sustained by the trial court and the verdict and judgment were set aside and vacated and judgment was entered by the trial court on behalf of both defendants. This motion was sustained on the grounds that under the law, the pleadings and the evidence, the plaintiff was not entitled to recover against defendants in this action. It is from this order of the trial court the appellant has filed a notice of appeal to this court.

The questions presented on this appeal are whether or not the appellant has stated a cause of action for a false return under the statute allowing a special Deputy Constable to be appointed at the request and risk of the respondents and whether or not there is evidence to support a submission of an alleged false return to the jury. In determining the sufficiency of the evidence to make a submissible case on an appeal from a judgment in favor of the plaintiff, all facts and reasonable inferences to be drawn from them must be viewed in the light most favorable to the plaintiff's case. Reese v. St. Louis Public Service Co., Mo.App., 368 S.W.2d 540. Section 517.100, RSMo, V.A.M.S. provides for the appointment of a special deputy designated by the plaintiff and for a person not being a party to the suit to execute the service of a summons. There must be an endorsement on the process to the effect that: 'At the request and risk of the plaintiff, I (plaintiff) authorize _ _ to execute this writ.' It further provides that the person so empowered shall thereupon possess all the authority of a sheriff in relation to the service to such summons, and shall be subject to the same obligations, and shall receive the same fees for services, except mileage.

It has long been the rule in Missouri that a sheriff's return is conclusive upon the parties to the suit and the injured party must seek his remedy for false return against the sheriff on his bond. Majewski v. Bender, Mo.App., 237 s,.W.2d 235; Johnson v. Wilson, Estate, Mo.App., 256 S.W.2d 297. The statutes...