Pisculic v. Pletka
| Decision Date | 09 February 1928 |
| Citation | 2 S.W.2d 187,221 Mo.App. 250 |
| Parties | EDWARD PISCULIC, APPELLANT, v. ANNA PLETKA, RESPONDENT. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.
REVERSED AND REMANDED.
Judgment reversed and remanded.
Lubke & Lubke for appellant.
(1) The statute authorizes an attachment "where the debtor has failed to pay the price or value of any article or thing delivered, which, by contract, he was bound to pay upon delivery." R. S. 1919, sec. 1725, No. 13. An affidavit in the language of the statute is sufficient to authorize an attachment. Shelton v. Smith, 214 Mo.App. 519. (2) That the facts as alleged in an affidavit to support an attachment are not true is no ground for dissolving the attachment on motion. The truth must be put in issue by plea. Graham v. Bradbury, 7 Mo. 281; Searcy v. Platte County, 10 Mo. 269. (3) Where a buyer refuses to accept personal property, the seller may, if the contract has been so far performed by him, that the property is ready for delivery before he has notice of the buyer's intention to decline acceptance, treat the property as belonging to the buyer, hold it after tender, subject to the buyer's order and recover the full agreed price. Weber Motor Car Co. v Roberts, 203 Mo.App. 509, and cases cited; Turner Looker Co. v. Hindman, 298 Mo. 61; St. Louis Range Co. v. Kline Drummond Merc. Co., 120 Mo.App. 438; Black River Lumber Co. v. Warner, 93 Mo. 210; Oehler v. Conrad Schopp Fruit Co., 162 Mo.App. 446; Stix-Baer-Fuller Dry Goods Co. v. Ottawa Realty Co., 273 Mo 376.
Foristel, Mudd, Blair & Habenicht, Harvey B. Cox and Harry S. Rooks for respondent.
The appeal should be dismissed for the following reasons: (1) Appellant is not a party "aggrieved" by the judgment appealed from, and has no right to appeal under the statute (R. S. 1919, sec. 1469). Kinealy v. Macklin, 67 Mo. 95, 99. The judgment appealed from is wholly in appellant's favor, and is for the full amount sued for. (2) Bonfils v. Martin's Service Co., 299 Mo. 500, 506. (3) In all cases not specially provided for in the article on attachments, "all pleadings and other proceedings in attachment causes shall conform to and be governed, as near as may be, by the laws regulating the practice in civil cases." R. S. 1919, sec. 1759. (4) This appeal cannot relate to or affect any decision on the attachment proceedings, because: (a) No appeal lies from an order dissolving an attachment. Davis v. Perry, 46 Mo. 449; Walser v. Haley, 61 Mo. 445. The statute (R. S. 1919, sec. 1766) relating to appeals from decisions on attachments is expressly confined to decisions on pleas in abatement. The statutes relating to dissolving attachments on motion (R. S. 1919, secs. 1772, 1773) do not authorize an appeal, and the language of sec. 1773 clearly contemplates that there will be no appeal. No statute authorizes any such appeal at any time. Wirt v. Dinan, 41 Mo.App. 236, 242. (b) If an appeal did lie from an order or decision dissolving an attachment, the present appeal should be dismissed, because: (1) It was not taken at the same term when the decision was made (R. S. 1919, sec. 1471). (2) No order, decision or judgment relating to the attachment or its dissolution was made during the term at which the appeal was taken. R. S. 1919, sec. 1471. The judgment appealed from does not dissolve or affect the attachment and contains no reference to it whatever. (3) If a final decision dissolving the attachment could not be rendered until a final judgment on the merits, and the appellant could not appeal until that time, then, since the present judgment does not mention the attachment, and, hence does not dispose of all the issues, the appeal is premature and should be dismissed for that reason. (c) The question herein presented has become moot. When the attachment was dissolved, the property was surrendered and the law's custody and appellant's lien therein terminated. No decision of this or any other court can retake that property and restore that lien as of that time. There is no law preserving the attachment or lien in such cases pending the appeal or during the time that appellant waited before appealing. Appellant, by execution on the judgment in his favor, already has every right and remedy that this court could give by a decision. That the above is the effect of the dissolution of the attachment on motion is indicated by R. S. 1919, sec. 1773. An appeal does not lie to decide such moot questions (State ex rel. Ashton v. Imel, 243 Mo. 174, and also 243 Mo. 178). But if the appeal does lie, then the judgment or decisions should be affirmed for the following reasons: (5) Appellant filed no motion for new trial, motion in arrest of judgment or other motion after the decision appealed from. The ruling on the motion to dissolve the attachment is a matter of exception which must be preserved in a bill. If that ruling is so related to the judgment or decision herein appealed from as to authorize a review of that ruling on this appeal from the present judgment, then it was necessary to preserve that point in a motion for a new trial or arrest of judgment or other appropriate motion filed after the trial, to enable the court then to correct its decision. Coffey v. Carthage, 200 Mo. 616, 629. In the absence of such a motion, only the record proper is reviewable, and since no error in the record proper is assigned, there is nothing before the court for review, and the judgment should be affirmed. (6) The order dissolving the attachment was proper. The record showed (as appellant then admitted, and now in the brief, pages 10 and 11, admits the fact to be) that the attachment was sought to be based on a merely theoretical or fictitious delivery as distinguished from an actual delivery, and that appellant still had the actual possession of the property, and respondent never did have it. An attachment does not lie under such facts. Paragraph 13 of the attachment statute (R. S. 1919, sec. 1725) does not authorize an attachment where the plaintiff still has actual possession of the property, and the defendant never had it. The purpose of the statute is to protect the vendor who has parted with the possession of the property under a promise to pay on delivery, and where the defendant has received the actual possession and dominion over the property, without paying for it as agreed. St. Louis Type Foundry v. Pub. Co., 3 Mo.App. 142, 146, 147; Miller v. Godfrey & Co., 1 Colo.App. 177, 181; Kilpatrick v. Inman, 46 Colo. 514; Hill v. Merc. Co., 42 Colo. 491; Young v. Lynch, 30 Kan. 205; Richardson's Mo. Exp. Co. v. Cunningham, 25 Mo. 396; C. Aultman & Co. v. Daggs, 50 Mo.App. 280. Obviously, within the meaning of the attachment statute, "delivery" of the property to the debtor is not accomplished by the seller delivering the property to himself, as was attempted in this case. Finlay v. Bryson, 84 Mo. 664, arguendo, and cases cited supra. And, by electing to treat the property as delivered, when he knew he had not been paid and would not be paid upon that fictitious delivery, plaintiff waived the provision for payment on delivery, and cannot invoke attachment on that ground. Young v. Lynch, 30 Kan. 205, arguendc; Harlow v. Sass, 38 Mo. 34, and cases cited supra. (7) It must be presumed that the attachment was dissolved for good cause. Lane v. Fellows, 1 Mo. 253, 255.
This is an action to recover the purchase price of a tombstone or monument made by plaintiff for defendant. The petition is in proper form and contains the following clause, about which some controversy arises: It is alleged, inter alia, "that plaintiff fabricated said monument, and on the 5th day of June, 1923, tendered delivery of the same to the defendant and demanded payment of the purchase price of $ 650, which, under the terms of said contract, defendant bound herself to pay on such delivery and payment of said sum was by defendant refused, etc."
Appended to the petition is an affidavit for attachment which is in perfect and proper form and in the language of the statute. It is there recited that the defendant "has failed to pay the purchase price of a certain monument delivered, which, by her contract for the purchase of the same, she was bound to pay upon the delivery." Attachment bond was filed; a writ of attachment and summons was issued, duly made returnable at the return term. A sheriff served the writ of attachment by levying on certain shares of stock owned by defendant in a Building and Loan Association and summoned the association as garnishee. At the return term, defendant filed a plea in abatement, challenging the facts in the affidavit for attachment. Defendant also filed a verified answer denying the execution of the contract.
Subsequently, the defendant withdrew her plea in abatement and filed a motion to dissolve the attachment alleging as grounds, that under the petition and affidavit said attachment was improvidentially granted in this, first, that the petition does not allege delivery of the monument and the failure to pay upon delivery, and, secondly, that the monument was never delivered by plaintiff as admitted by plaintiff in a deposition; that the affidavit is in conflict with the petition and cannot be used as a basis of attachment in the cause. This motion was heard by the trial judge without evidence, and same was sustained on June 13, 1924, at the June term of the said circuit court and entered of record on that day. The court did not assign any specific ground therefor, but it seems to be on the...
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