Morris Plan Co. of Kansas v. Jenkins
| Decision Date | 15 December 1948 |
| Docket Number | No. 6743.,No. 6744.,6743.,6744. |
| Citation | 216 S.W.2d 160 |
| Parties | MORRIS PLAN CO. OF KANSAS v. JENKINS. MORRIS PLAN CO. OF KANSAS v. MISSOURI WHITE MOTORS, Inc. (MORRIS CAR EXCHANGE, Intervener). |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene County; H. F. McLaughlin, Judge.
Suits in replevin by the Morris Plan Company of Kansas against L. E. Jenkins to recover possession of a truck and against Missouri White Motors, Inc., to recover possession of a tractor and trailer, wherein the Morris Car Exchange intervened. The cases were consolidated for trial and on appeal. From judgments in favor of defendant and intervenor respectively, plaintiff appeals.
Judgments affirmed.
William R. Collinson, of Springfield, for appellant.
Harold T. Lincoln and Frank B. Williams, both of Springfield, for respondents.
The judgments in these cases were rendered August 9 and 16, 1947, respectively. The motions for new trial were filed August 18 and overruled August 30. The notice of appeal was filed September 6, 1947. Under the statute and the rules of court, Secs. 135 and 137, Civil Code of Mo. Laws of Mo.1943, pp. 393 and 394, Mo. R.S.A. §§ 847.135, 847.137, Rules of Supreme Court, rule 1.04(a), the transcript of the record must be filed within 90 days unless extended as provided in Sec. 6, para. (b) of the Civil Code of Missouri, Mo.R. S.A. § 847.6(b). Without an extension, the transcript should have been filed by December 6, 1947. However, the trial court on December 1, made an order extending the time for filing the transcript to and including January 31, 1948. On January 29, 1948, another order of extension was entered by the trial court extending the time for filing the transcript for "60 days from date." This would have extended the time until the 29th day of March, 1948, if the trial court had had that power. No other order was made until June 3, 1948 when the trial court attempted by nunc pro tunc entry to extend the time to and including June 7, 1948, which would have been nine months and one day from the filing of the notice of appeal.
Rule 3.26 of the Supreme Court of Missouri, and which is applicable to this court, provides:
"The trial court shall not extend the time for filing the transcript on appeal for a longer period than six months from the date the notice of appeal is filed in the trial court."
This rule is supplemental to Section 138 of the Civil Code of Missouri, Mo.R.S.A. § 847.138. The transcript was filed in this court June 7, 1948, considerably more than six months after the date of the filing of the notice of appeal. No application was made to this court, as could and should have been done under the provisions of Sec. 6, par. (b) of the Civil Code of Missouri.
However, the case has been briefed and submitted by all parties and no question has been raised as to the timely filing of the transcript. While under this state of the record, we would be justified in dismissing the appeals, Sec. 129, Civil Code of Missouri, Mo.R.S.A. § 847.129, Supreme Court Rule 1.30, we have decided, notwithstanding, to determine the case upon its merits. Costello v. Goodwin et al., Mo. App., 210 S.W.2d 375.
These two cases were consolidated for trial and are consolidated on appeal. A jury was waived and trial was by the court. They are suits in replevin, one seeking to recover possession of a tractor and trailer, the other seeking to recover possession of a 1½ ton Ford truck. The plaintiff in each case is the Morris Plan Company of Wichita, Kansas, a corporation. In each case this company, the plaintiff, had loaned one Floyd Russell money first on the truck and trailer and then on the Ford truck, had taken a chattel mortgage on each of them and these chattel mortgages had been duly filed for record in Oklahoma City, Oklahoma County, Oklahoma. We will state the facts in each case separately.
This case was filed in the circuit court of Christian County on the 23rd day of August, 1946. A change of venue was taken and it came to Greene County. The defendant was L. E. Jenkins and by the petition, the plaintiff sought to recover the possession of "one 1942 Ford, 1½ ton truck, Serial No. GTB138610." It was claimed that plaintiff had a chattel mortgage on this Ford executed by Floyd Russell on the 2nd day of July, 1946, and that default had been made in payment of the note it secured. A copy of said chattel mortgage was attached to the petition. It was asserted that the value of the property was $778.00 and that plaintiff had been damaged in the sum of $100.00.
The answer admitted the possession of the Ford but insisted that the Morris Car Exchange on the 11th day of July, 1946, in good faith, purchased the said truck and possession was that day delivered by Floyd Russell without any knowledge on the part of the Morris Car Exchange of the plaintiff's alleged mortgage. That on the 19th day of July, 1946, defendant Jenkins for full value purchased the car from Morris Car Exchange without notice or knowledge of any chattel mortgage.
The evidence showed that on July 2nd, 1946, the plaintiff, at their office in Wichita, Kansas, loaned Floyd Russell $778.00 on the Ford truck, for which Mr. Russell executed his note secured by a chattel mortgage on the truck, which mortgage was duly filed for record in Oklahoma City, Oklahoma County, Oklahoma, on July 5, 1946. On July 11, 1946, Floyd Russell sold and delivered the Ford truck to the Morris Car Exchange in Springfield, Missouri. L. E. Jenkins purchased the Ford from the Morris Car Exchange on July 19, 1946. The evidence shows that neither the Morris Car Exchange or L. E. Jenkins had any actual knowledge that there was a chattel mortgage on the Ford. The undisputed evidence is that the Morris Car Exchange paid full value for the truck as did defendant Jenkins. The preponderating evidence showed that at the time of the execution of the note and chattel mortgage and at the time it was filed in Oklahoma County, the Ford truck was neither in the State of Kansas nor the State of Oklahoma but was actually in Springfield, Missouri, and the trial court so found. The Ford was not seen or examined by the plaintiff or its officers at the time the loan was made. The chattel mortgage was not recorded in Kansas or elsewhere except in Oklahoma County, Oklahoma.
The evidence further showed that on October 4, 1945, a Kansas Certificate of Title, No. 606460 to this Ford truck was issued to C. E. Jones — White Truck Sales, a Kansas registered dealer at Wichita, Kansas, and this was, in writing, assigned by the dealer to Floyd Sales Service, Oklahoma City, Oklahoma, on April 27, 1946. Floyd Sales Service was a trade name used by Floyd Russell. This assignment warranted the title of the Ford to be free from all liens and encumbrances, and stated there were "none" against it. Floyd Russell delivered this certificate of title to the Morris Car Exchange in Springfield, July 11, 1946, and at that time informed the purchaser that there were no mortgages of any kind against this property. This vehicle was later sold to Jenkins.
A re-delivery bond had been given by defendant Jenkins and after hearing the testimony, the court found against the plaintiff and that defendant Jenkins was entitled to possession of the Ford, but allowed no damages.
On May 8, 1946, C. E. Jones of the White Motor Company of Wichita, Kansas, telephoned the president of plaintiff and asked it to make a loan to one Floyd Russell, who did not live in Wichita. Mr. Russell had a letter from his bank in Bethany, Oklahoma, stating that the bank had financed him to its legal limit and requested the White Motor Company of Wichita to assist Mr. Russell in additional financing. Pursuant to this request of C. E. Jones, the plaintiff loaned Mr. Russell $6180.00 for which he and his wife executed a promissory note and as a security gave a chattel mortgage upon certain motor vehicle equipment, among which were "one 1943 White WA120COE tractor, Motor No. 120a6098 and one Queen City 26-foot semi-trailer, Serial No. 1520." This chattel mortgage was filed for record in Oklahoma County, Oklahoma, on May 10, 1946, because Mr. Russell had stated that he resided in Oklahoma City. At the time he secured the loan, Russell stated Oklahoma City was his place of residence and that his occupation was "contract hauling." At the time this chattel mortgage was taken, this truck and trailer were neither in Oklahoma or Kansas but were in Hot Springs, Arkansas, and they were not examined or viewed by the officers of the plaintiff when the loan was made.
On July 11, 1946, Floyd Russell sold the tractor and trailer to the Morris Car Exchange of Springfield for value and without the Morris Car Exchange or its officers having actual notice that there were any liens or encumbrances against it. On September 10, 1943, Kansas Certificate of Title No. 467834, for the tractor, was issued to Southwest Grease Company of Wichita, Kansas, and this tractor was later sold and the title assigned by Southwest Grease Company to Floyd Russell of Oklahoma City on May 2, 1946. This assignment warranted the tractor to be free from all liens and encumbrances and stated there were "none" against it. This certificate and assignment were in the possession of Floyd Russell July 11, 1946, and he turned the same over to the Morris Car Exchange on that date.
On April 9, 1946, Kansas Certificate of Title No. 651824, for the Queen City Semi-Trailer, was issued to C. E. Jones — White Truck Sales, a registered dealer of Wichita, Kansas, and was assigned by him to Floyd Russell of Oklahoma City, Oklahoma, April 27, 1946. This assignment also warranted the title of said vehicle to be free from all liens and encumbrances against it and asserted that there were "none" against it. The certificate with the assignment indorsed thereon, was in the possession of Floyd Russell July 11, 1946 and was...
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