Moriund v. Johnson

• Decision Date: 10 January 1910
• Citation: 124 S.W. 80,140 Mo. App. 345
• Parties: MORIUND v. JOHNSON et al.
• Court: Missouri Court of Appeals

124 S.W. 80

140 Mo. App. 345

MORIUND v. JOHNSON et al.

Springfield Court of Appeals, Missouri.

January 10, 1910.

1. REPLEVIN (§ 8) — RIGHT OF ACTION — TITLE AND RIGHT OF POSSESSION.

Plaintiff in replevin must show a general or special interest in, and a right to immediate and exclusive possession of, the property detained.

2. REPLEVIN (§ 12) — DEFENSES — TITLE IN THIRD PERSON.

Defendant in replevin may show title or right of possession in a third person.

3. JUSTICES OF THE PEACE (§ 104) — REPLEVIN — EXECUTION AS DEFENSE — BURDEN OF PROOF.

Though plaintiff in replevin in a justice's court must state that the property was not taken on execution, etc., he does not have the burden of disproving defendant's answer alleging that he claims the right of possession under an execution against the property, but such burden is on defendant.

4. FRAUDULENT CONVEYANCES (§ 222) — RIGHT TO ATTACK — EXECUTION OFFICER.

A constable as defendant in replevin, who seeks to justify his possession under an execution against a third person, cannot attack, as fraudulent as to the execution creditor, a sale by such third person to plaintiff, unless he shows a valid execution issued on a valid judgment.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

Action of replevin by John Moriund against James Johnson and Frank Jackson. Defendants had judgment, and plaintiff appeals. Reversed.

This was an action commenced before a justice of the peace at Monett in Barry county, where appellant filed on the 26th day of May, 1906, the following statement and affidavit in replevin (formal parts omitted): "Plaintiff states that he is lawfully entitled to the possession of one white cow about four years old, hole in right ear; one red cow about four years old, hole in right ear; four red heifers, with a hole in right ears; two red steers two years old, marked with hole in right ear; one black yearling steer, hole in right ear, of the value of one hundred dollars; that the same is wrongfully detained by the defendants at the county of Barry aforesaid; that the same has not been taken under any process, execution or attachment against the property of the plaintiff; that the said property has been injured by being taken out of pasture and driven away, and that for the taking and detention of said property, and for all injuries thereto, the plaintiff is damaged twenty-five dollars. Plaintiff further states that he will be in danger of losing his said property unless it be taken out of the possession of the defendants. That the said property was wrongfully taken, and plaintiff's right of action accrued within one year. Wherefore, plaintiff prays judgment for the recovery of said property, and twenty-five dollars damages for the taking and detention thereof, and for all injuries thereto. John Moriund, plaintiff, makes oath and says that to the best of his knowledge and belief the facts and allegations contained in the above statement are just and true; that said property was wrongfully taken, and plaintiff's right of action accrued within one year."

The appellant also filed a delivery bond, duly approved, and the writ was issued and the property taken from the respondents and delivered to appellant. The respondents filed the following answer (formal parts omitted): "Now come the defendants in the above-entitled cause and deny each and every allegation of plaintiff's claim to the property described in plaintiff's complaint. Further answering specially the defendants say that the ownership of the aforesaid property is in Joe Moriund, and that it was subject to levy and sale under a certain execution in the hands of James Johnson as constable of Shoal township, whereby Frank Jackson, one of the defendants herein, obtained judgment against the said Joe Moriund on a certain promissory note given by the said Joe Moriund for the sum of $50; that plaintiff, John Moriund, and his brother Joe Moriund, who pretended to sell all his property to John Moriund, the plaintiff, intending to aid Joe Moriund in his fraudulent purpose pretends to own same, but in fact the aforesaid property is the property of Joe Moriund, which the said Johnson levied on by virtue of a writ of execution in his hands to satisfy said judgment against the said Joe Moriund. Wherefore, defendants pray that the property be restored to them and that they have twenty-five dollars damage for the wrongful taking of said property."

A trial was had before the justice of the peace which resulted in a verdict in favor of the plaintiff. An appeal was taken by the defendants to the circuit court of Barry county, and a change of venue was granted to Stone county where a trial was had and judgment rendered for the defendants. From that judgment, the plaintiff has appealed.

The testimony on the part of the respondents tended to show that the respondent, James Johnson, as constable, took the property in question from the plaintiff, John Moriund. It also tended to show that John Moriund was the owner of the property in question and that the same was in his pasture when taken by James Johnson and was taken from his farm in his absence, and that as soon as he learned of the taking of the property, he demanded its return; that upon refusal, this action in replevin was brought to recover possession. As we have seen, the respondent, James Johnson, undertook to justify his seizure and possession of the property by asserting that his co-respondent, Frank Jackson, had obtained a judgment against the appellant for $50, and that he seized the cattle under an execution issued upon that judgment as the property of Joe Moriund; but at no time during the trial was any judgment or execution offered in evidence. Evidence was introduced by respondents tending to show that the property in question at one time had belonged to Joe Moriund, who was the common source of title, and who had transferred it to his brother, John Moriund, for the fraudulent purpose of hindering and delaying his (Joe's) creditors, and the trial court gave instructions on this theory of the case.

T. D. Steele, for appellant. Mayhew & Sater, for respondents.

NIXON, P. J. (after stating the facts as above).

This action, as we have seen from the statement, was commenced before a justice of the peace, and an inspection of the statement and affidavit of the plaintiff, as filed before the justice, reveals that he almost literally copied the form of the statement and affidavit provided by section 3902 of the Revised Statutes of 1899 (Ann. St. 1906, p. 2158). The answer of the defendants contained a general denial and also set up a plea of justification that the defendant, James Johnson, was a constable, and as such officer had seized the property in question and held it under an execution. The other defendant interpleaded, and on his own motion was made codefendant.

Under the issues in this case, the defendants having denied the allegations of plaintiff's statement, the plaintiff was required, in order to maintain his action of replevin, to prove a general or special property interest in and the right to immediate and exclusive possession of the property detained, and it was permissible for the defendants to show that plaintiff had no exclusive right to possession, or that some other party had such exclusive right to possession, or that plaintiff had no general or special property interest in the stock taken. American Metal Co. v. Daugherty, 204 Mo. 71, 102 S. W. 538.

It is conceded by both parties that Joe Moriund, the brother of the plaintiff, was the common source of title of the property in question. The plaintiff claims through him, and the defendants at the trial sought to impeach the validity of the transfer from Joe Moriund to the plaintiff. The defendants had the right to show that plaintiff and Joe Moriund were jointly interested in the property or jointly in possession of the same, and such a showing would have been a good defense to plaintiff's action whether defendants had a valid execution or not, since the action of replevin, under our statutes, can only be maintained by one having the right to immediate and exclusive possession. Stockman v. Galt State Bank, 126 Mo. App. 664, 105 S. W. 674; McCabe v. Black River Transp. Co., 131 Mo. App. 531, 110 S. W. 606. Over these questions of law there can be no real controversy in this case. But the defendants also...