National Theater Supply Co. v. Scovill

• Decision Date: 26 October 1929
• Citation: 22 S.W.2d 68,223 Mo.App. 968
• Parties: NATIONAL THEATRE SUPPLY COMPANY, A CORPORATION, RESPONDENT, v. GEORGE T. SCOVILL ET AL., DEFENDANTS, J. W. SANDERS, LOUIS L. BARTH AND MORRIS B. BARTH, BEING APPELLANTS. [*]
• Court: Missouri Court of Appeals

22 S.W.2d 68

223 Mo.App. 968

NATIONAL THEATRE SUPPLY COMPANY, A CORPORATION, RESPONDENT, v. GEORGE T. SCOVILL ET AL., DEFENDANTS,

J. W. SANDERS, LOUIS L. BARTH AND MORRIS B. BARTH, BEING APPELLANTS. ^[*]

Court of Appeals of Missouri, Springfield

October 26, 1929

Appeal from the Circuit Court of Greene County, Division No 2.--Hon. Warren L. White, Judge.

AFFIRMED.

Judgment affirmed.

Sturgis & Henson for appellants.

R. B LaRue, Hamlin, Hamlin & Hamlin and C. W. Hamlin for respondents.

SMITH J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This cause was commenced in the circuit court of Greene county, by plaintiff filing therein on Novemder 7, 1927, a petition in replevin against George T. Scovill, Nathan Zoglin, and John Doe, defendants, wherein the plaintiff sought to obtain possession of certain moving picture paraphernalia, particularly described in the petition. The description of the property was lengthy and it is not necessary to describe the property here because there is no controversy as to the description of the property replevined. The petition was supported by affidavits in replevin and the plaintiff executed a bond for $ 4000 which is double the alleged value of the property.

The record shows that the sheriff made return to the summons issued against the three original defendants on the 7th day of November, 1927, by making diligent search and failing to find the defendants in Greene county, Missouri, and the sheriff's return showed that he executed the writ or order in claim for possession and delivery of the personal property by taking the within specified goods, chattels, and property from the possession of the within named, George T. Scovill, Nathan Zoglin, and John Doe, defendants, and delivered said goods, chattels, and property to the National Theatre Supply Company, plaintiff. This the 7th day of November, 1927.

On February 14, at the January term, 1928, the appellants, J. W. Sanders, Louis L. Barth, and Morris B. Barth filed a motion to be permitted to be made defendants in said action and alleged as a reason therefor that they had a claim in the nature of a lien on the property in controversy and that the property was actually in their possession at the time the officer took the same under the writ of replevin. The trial court heard said motion and sustained the same and these parties were made defendants in said cause, and leave was given them to defend in this cause, to which action of the court in so sustaining said motion plaintiff objected and accepted at the time, but the plaintiff did not appeal from the order of the court in so permitting these three persons to be made defendants. On the same day an alias summons was issued to Jackson county for defendants, George T. Scovill, and Nathan Zoglin, returnable to the next term of said court.

On February 18, 1928, defendants, Sanders, Barth and Barth, filed a motion to require plaintiffs to give a new bond in replevin in favor of all the defendants, which motion was by the court sustained and an order was made that plaintiff give the new bond on or before April 1, 1928. On May 25, 1928, the defendants, Sanders, Barth and Barth, filed a motion for return of the property taken by plaintiffs under the writ of replevin because the plaintiff had failed and refused to comply with the order of the court in giving a new bond, and on the same date, the defendants, Sanders, Barth and Barth, filed their separate answer in which they admitted that the plaintiff is a corporation and admitted that the property described in the petition and in the writ of replevin was and is of a reasonable value of $ 2000. And for further answer the said defendants denied that the plaintiff is or was at the time of the filing of this suit, the owner of the property described in the petition or that it is or was entitled to the possession of the same; also they denied that said property was or is detained by the other defendants in this cause; also denied that plaintiff has been damaged in any sum by the detention of the said property.

And for further answer defendants, Sanders, Barth and Barth, stated that at the time this suit was filed and the replevin writ issued therein and the property taken by the sheriff of Greene county and delivered to the plaintiff, these defendants, Sanders, Barth and Barth, were in the actual possession of the said property; that said property was then located in a building on Boonville street in Springfield, Missouri, owned by these three defendants; that these defendants had full possession of said property and that these defendants were in lawful possession of said property and had a right to retain the same; that they had and have a valid lien on said property.

These defendants, Sanders, Barth and Barth, for further answer state that the other defendants, Scovill, Zoglin and John Doe, were not in possession or control of said property sued for and were not entitled to said possession and had no interest in the same; that said property was not taken from the possession of such other defendants; but the sheriff purporting to act under the writ of replevin took the possession of the said property from these defendants and delivered the same to the plaintiff; that said plaintiff received and took said property into its possession and at once removed the same from Greene county and from the State of Missouri and beyond the jurisdiction of this court and its officers, and that said property so taken from these defendants and received by the plaintiff has not been since taken in the State of Missouri.

The defendants, Sanders, Barth and Barth, alleged that they claim and have title and right of possession to said property under and by virtue of a lease of a building on Boonville street in Springfield, known as the Ritz Theatre owned by these three defendants and leased by them to one Louie B. Stevens, which lease is on record in Book 514, page 85 of the land record of Greene county and is dated January--, 1927, and filed for record February 1, 1927, and which said lease contained the following provisions:

"The said lessee, Louie Stevens, agrees to pay these defendants for the use and rent of said building the sum of two hundred ($ 200) dollars per month, payable on the first day of each and every calendar month, beginning on April 1, 1927, and to continue for a term of five years from said date. The amount of said rent to be then increased to two hundred twenty-five ($ 225) dollars for the remainder of the term of said lease of ten years.

"It is further agreed that the lessors shall have a lien on the personal property which the lessee may place in said building, the said lien being hereby granted for the purpose of securing the payment of the rent herein provided for the full term of this lease, and it is further agreed that such property when once installed in said premises shall not be sold or removed therefrom without the written consent of the lessors.

"It is further agreed that the lessee expects to operate a moving picture show and vaudeville in said building and that the property will consist of moving picture machines, curtains, seats, and the other and usual equipment and paraphernalia ordinarily found in a movie theatre, and it is distinctly understood and agreed that the lien herein given shall apply to all such property and any other property used in connection with said theatre and as belonging thereto and which may hereafter be installed in said premises.

"The said lessors may enforce said lien when any rent is delinquent by taking possession of and selling such of said property as may be sufficient to pay the delinquent rent, and additional sales may be made thereafter of other property in the event the rent should be delinquent thereafter. Such sales under this lien may be made either publicly or privately, and in case said property is sold at public sale, ten days' notice of such sale shall be given by handbills posted in three public places in Springfield, Missouri, giving the time, terms and place of sale and a description of the property to be sold."

Defendants, Sanders, Barth and Barth, further say that the said Louie Stevens, as lessee, placed and installed in said building the property described in the petition, on or about the 1st day of February, 1927, and used said property in conducting a theatre and picture show; that on or about July 1, 1927, said Stevens made default in payment of rent upon said building and that after such default in the payment of rent the said Stevens on or about September 1, 1927, surrendered possession of said building and the property herein sued for to these defendants, and these defendants then took possession of the building and the property herein sued for and continued in possession of same until the property was taken by the sheriff from said building and from the possession of these defendants and delivered to plaintiff; and these defendants further alleged that at the time of taking of said property by the sheriff there was due and unpaid to these defendants rent for the use of said building in the sum of about $ 1000 and these defendants were in possession and were holding said property for the payment of rent due and to become due, and that no rent has been paid on said building since June 1, 1927, and that there is now due these defendants for rent an amount equal to and greater than the value of said property so taken and these defendants, Sanders, Barth and Barth, prayed for an order that they be declared to be entitled to the possession of the said property and that said property be returned to them and for such relief as may be proper and necessary in the premises.

On May 21, 1928, Nathan Zoglin filed his separate answer or stipulation...