R. W. Wilson Motor Company v. Hoover

• Decision Date: 28 February 1927
• Citation: 293 S.W. 61,222 Mo.App. 570
• Parties: R. W. WILSON MOTOR COMPANY ET AL., RESPONDENTS, v. J. G. HOOVER ET AL., APPELLANTS. [*]
• Court: Kansas Court of Appeals

293 S.W. 61

222 Mo.App. 570

R. W. WILSON MOTOR COMPANY ET AL., RESPONDENTS, v. J. G. HOOVER ET AL., APPELLANTS. ^[*]

Court of Appeals of Missouri, Kansas City

February 28, 1927

Appeal from the Circuit Court of Jackson County.--Hon. Nelson E Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Hackney & Welch for respondent.

Rader & Rader, and Joseph S. Brooks for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is a common-law action for damages on a replevin bond given by defendants in a prior action in replevin. The replevin suit was instituted by defendants herein against R. W Wilson, doing business as R. W. Wilson Motor Company, and the obligee in the bond was so designated.

At the return term of the replevin suit the R. W. Wilson Motor Company, a Missouri corporation, entered its appearance and filed its motion to be made a party defendant, and this motion was sustained. The corporation, thereupon, after claiming the property and demanding its return, filed a motion to require plaintiffs in the replevin suit to file an additional replevin bond specifically naming the said corporation as such as one of the obligees therein. The said motion was sustained and an order accordingly entered requiring plaintiffs therein to furnish such additional bond. Plaintiffs therein defied the said order of the court, refused to give the additional bond and the delivery of the property to defendant's therein, and the dismissal of the replevin suit was thereupon ordered by the court. Thereafter this suit was instituted, the defendants in the replevin suit becoming the plaintiffs herein and plaintiffs in the replevin suit becoming defendants herein, to recover damages sustained to the property involved, during the pendency of the replevin suit and while the property was in possession of defendants herein, viz., J. G. Hoover and C. A. Hoover, doing business as Hoover Brothers Construction Company.

From the fragmentary and more or less disconnected statements of counsel and the pleadings of record in both cases, it appears the R. W. Wilson Motor Company was a corporation dealing in motor trucks; that at the time the replevin suit was instituted the corporation had possession of two new 7-X Stewart trucks, equipped with steel contractor's dumps and hoists, valued at $ 8080 for the two; that on or about April 4, 1921, J. G. Hoover and C. A. Hoover, doing business as Hoover Bros. Construction Company, filed suit in the circuit court of Jackson county, Missouri, at Kansas City, to replevin said trucks, claiming right of possession thereof, naming themselves as plaintiffs and describing defendants therein as "R. W. Wilson, doing business as R. W. Wilson Motor Company." That on the institution of the replevin suit and incident thereto, plaintiffs therein executed and delivered to the sheriff of Jackson county, Missouri, a replevin bond in the penal sum of $ 16,000, which was double the value of the trucks as stated in the affidavit for replevin. The bond was signed by the Hoovers as principal with defendant United States Fidelity and Guaranty Company, as surety. The bond is statutory and it is unnecessary to set it out.

Upon application of plaintiffs herein, the court by order, required defendants to file an additional replevin bond naming R. W. Wilson Motor Company as obligee therein, on or before March 30, 1922, or to return to defendants therein the property replevined. Plaintiffs therein, by their attorneys, declined and refused to file such additional replevin bond, on the ground that the court had no jurisdiction to make an order requiring such addition and that the bond already given was sufficient. Plaintiffs expressly waived the time given for the filing of the additional bond required in the order and asked the court to proceed as though the time for giving same had expired. Defendants therein asked and were granted leave to amend their several answers by interlineation, asking $ 4,000 for the taking and detention of the property. Defendants then asked the court to proceed to require the return of the property and to assess defendant's damages, and to dismiss the action at the costs of plaintiffs, as provided in section 2079 Revised Statutes 1919. The court declined to assess the damages for the taking and detention of the property but ordered and adjudged that, in view of the refusal of plaintiffs to comply with the order of court requiring additional bond, that the sheriff forthwith retake the property replevined and deliver same to defendants, and that plaintiffs take nothing by their writ; that the cause be dismissed; that defendants go hence without day and have and recover from plaintiffs and the United States Fidelity & Guaranty Company, their surety on the replevin bond, the costs of the suit. Thereafter, as above indicated, this suit was instituted to recover damages done to the trucks while they were being returned under the writ of replevin.

The petition alleges the formal facts above related and prays judgment in the sum of $ 4580 and costs. The defendants each filed separate answer in the form of general denials. Plaintiffs filed an amended petition naming R. W. Wilson Motor Company, R. W. Wilson, H. B. Boyd, and O. H. Earnest, trustees of said R. W. Wilson Motor Company, and R. W. Wilson individually, as plaintiffs and J. G. Hoover and C. A. Hoover, doing business as Hoover Bros. Construction Company and the United States Fidelity & Guaranty Company as defendants. The said defendants each filed separate demurrer upon the grounds (1) that the petition does not state facts sufficient to constitute a cause of action; (2) there was a defect of parties pleaded, (3) that both parties pleaded were not necessary parties to a complete determination of the action, and (4) that R. W. Wilson was not a necessary party to the action. The demurrers were overruled, and on April 8, 1925, defendants filed their petition for review and to set aside the judgment. Plaintiffs filed a timely demurrer to the petition for review.

Thereupon, on May 14, 1925, the parties entered into the following stipulation:

"First: That the default judgment rendered in this court for plaintiffs on March 6, 1925, be set aside and for naught held.

"Second: That plaintiffs be permitted to amend their first amended petition by interlineation increasing their allegations of damages $ 750 and asking for six per cent interest from date of commencement of this suit, and that defendants be permitted to forthwith file answers to plaintiffs' first amended petition and plaintiffs file reply thereto.

"Third: That this cause be thereupon removed from Division No. 9 of this court to Division No. 4 of this court, a jury waived and the cause submitted to the court for trial in the following manner, to-wit:

"(a) All the pleadings, replevin bond, motions and record entries and proceedings in the original replevin suit, same being number 157185 on the docket of the circuit court of Jackson county, Missouri, shall be considered in evidence.

"(b) The court shall try and determine the issue of res adjudicata and of plaintiffs' right to sue on the replevin bond raised by the pleadings applicable to this evidence, and if the decision be for plaintiffs, shall render judgment against the defendants on the replevin bond, awarding damages to plaintiffs for the amount sued for and costs as prayed in the amended petition; and if the decision be in favor of defendants on these issues, the court shall render judgment in favor of defendants and for costs.

"Fourth: The losing parties in the trial court shall have the right of appeal from the court's judgment as in ordinary cases.

"Fifth: This stipulation shall govern in the trial of this cause as herein provided, but shall not be binding upon the parties hereto upon a subsequent trial after appeal thereof, if any."

The cause was tried by the court in accordance with the terms of said stipulation. Judgment was for plaintiffs in the sum of $ 5330, principal, and interest thereon in the sum of $ 1028.69, a total of $ 6358.69, together with costs.

Motions for a new trial and in arrest were overruled and defendants have appealed.

It is urged that the giving of declarations of law Nos. 2 and 3 for plaintiff was error. These declarations are as follows:

(2) "The court declares the law to be that the obligees named in the replevin bond being 'R. W. Wilson, doing business as R. W. Wilson Motor Company, ' it conclusively appears from said bond that the R. W. Wilson Motor Company was intended to be the obligee thereof, though misdescribed as an individual or trade name, instead of a corporation, and the court further declares the law to be that the R. W. Wilson Motor Company, as a corporation would have a common-law right of action on said bond, for damages to its property pending the replevin suit, inflicted by Hoover Brothers."

(3) "The court declares the law to be that the bond being payable to R. W. Wilson by name, and he being the president and agent of the corporation, the R. W. Wilson Motor Company the latter (was) as principal have a right of action on the bond for damages done to its property while in the custody of the plaintiffs in the replevin suit under the writ of replevin."

In support of this position appellants argue that the bond ran to R. W. Wilson, as defendant in the case. We are unable to grasp the force of this argument, in view of the language of the bond, to-wit:

". . . are bound to R. W. Wilson, doing business as R. W. Wilson Motor Company."

The record shows that the R. W. Wilson Motor Company forfeited its charter prior to the bringing of this action; and the issue is raised as to whether or not a dissolved corporation can maintain an action in its...