Ottumwa Nat. Bank v. Totten

• Decision Date: 13 May 1902
• Parties: OTTUMWA NAT. BANK v. TOTTEN (MADDEN, Interpleader).
• Court: Missouri Court of Appeals

68 S.W. 386

94 Mo. App. 596

OTTUMWA NAT. BANK v. TOTTEN (MADDEN, Interpleader).

Court of Appeals at St. Louis, Missouri.

May 13, 1902.

APPEAL — DECISIONS REVIEWABLE — ORDER GRANTING NEW TRIAL — PAROL EVIDENCE.

An order granting a new trial on the ground that the verdict of the court is against the evidence will be affirmed by the court of appeals where the evidence is partly parol, it not being reviewable in that court.

Appeal from circuit court, Clark county; Edwin R. McKee, Judge.

Action by the Ottumwa National Bank against George W. Totten, in which plaintiff attached certain property as belonging to the defendant, and W. L. Madden filed an interpleader, claiming the property as his. From an order of the court below granting a new trial after it had found the issue for the interpleader, the latter appeals. Affirmed.

Whiteside & Smoot, for appellant. Berkheimer & Dawson, for respondent.

BLAND, P. J.

Plaintiff sued defendant by attachment on three promissory notes, and attached as the property of defendant 9 black mules of various ages, 2 jersey cows, and 25 bushels of wheat. At the April term, 1900, of the Clark county circuit court, plaintiff filed an amended petition, wherein it is stated in substance, that the defendant, on the 21st day of August, 1899, executed and delivered to plaintiff a chattel mortgage on property (described) to secure said promissory notes, conditioned that all of the property described in the mortgage should remain on the premises of the mortgagor, where the same were situated at the date of the giving of the mortgage, until the full payment of all of the indebtedness secured by the mortgage, and that any attempt to sell or dispose of the said property, or to remove the same from the premises where they were at the time, would have the effect to make due and payable the three notes for which the mortgage was given to secure; that, after the execution of the mortgage, defendant sold and delivered to parties unknown to the plaintiff 19 head of the steers mentioned and described in the mortgage, also 2 cows, and that he fraudulently attempted to mortgage 5 of the mules embraced therein to one William Madden, and did actually make, execute, and deliver to said Madden a mortgage for the same, without the knowledge or consent of the plaintiff; that by reason of the violation of the terms of the said mortgage all of the notes sued on became due and payable. After the property was attached, but before the filing of the interplea, plaintiff procured an order from the judge of the circuit court for its sale, by virtue of which order the sheriff sold the property, and reported the proceeds of the sale to the court, which proceeds are yet held by the sheriff awaiting the final order of the court. At the April term, 1900, of the court, William Madden filed his interplea, claiming the property attached as his. To the interplea plaintiff filed its answer in two counts. The first was a general denial. The second alleged that the defendant Totten, on the 21st day of August, 1899, executed to it a chattel mortgage to secure three promissory notes of the said Totten, therein described, which mortgage was duly filed with the recorder of deeds of Clark county on the 25th day of August, 1899, and that the property attached and sold by the sheriff in the suit was a part of the property embraced in the mortgage, and that at the time of the commencement of the suit there was a balance due to plaintiff on the notes secured by the said mortgage of $1,000. There was no reply filed to this answer. The issues made by the interplea and the answer were submitted to the court without the intervention of a jury, who, after hearing the evidence, found the issues for the interpleader. In due time the plaintiff filed its motion for new trial, stating as grounds therefor, among others, that the verdict of the court was against the evidence and against the law and the evidence. The court sustained the motion, and assigned the following reason therefor: "Now, at this day comes the plaintiff, by Berkheimer & Dawson, its attorneys, as well as defendant interpleader, William L. Madden, by Whiteside & Smoot, his attorneys, and the motion for a new trial heretofore filed by plaintiff against said interpleader coming on to be heard is by the court sustained, for the reason, the court sitting as a jury in the trial of this cause under the law and the evidence should have been for the plaintiff bank and against the interpleader, but overruled said motion on all other grounds set up in said motion." The interpleader moved the court to set aside the order granting a new trial, which motion the court overruled, and the interpleader perfected his appeal. The interpleader, to sustain his interplea, read in evidence a chattel mortgage executed by George W. Totten and Bettie Totten, his wife, to the interpleader, on the 17th day of November, 1899, conveying to the interpleader nine mules and four cows to secure to interpleader the payment of a promissory note of even date with the mortgage for $360, due 30 days after date, payable to the interpleader, and signed by George W. Totten and Bettie Totten, his wife. The mortgage was duly acknowledged on the date of its execution, and filed for record on the following day. The evidence is that the property was kept on the Folker farm, in Clark county, upon which Totten, the defendant, resided. The evidence for the interpleader tends to show that on the day the property was attached, and before the attachment was levied, defendant, Totten, sent for Madden, and turned the property over to him, and told him to take it; that, as he was about to drive it away from the premises, the sheriff rode up, and took the property out of his possession. Plaintiff read in evidence a chattel mortgage executed by George W. Totten on the 21st day of August, 1899, conveying to it a large amount of personal property, including the property levied upon. This mortgage was duly acknowledged and recorded on the 21st day of August, 1899. The interpleader testified also that the mules and cows attached by the sheriff were the same mules and cows as are described in his chattel mortgage from Totten and wife. No declarations of law were asked or given.

1. The principal question presented by the record is whether or not the plaintiff, by causing the property in controversy to be seized under the writ of attachment sued out by it, thereby waived...