Regan v. Dickmann

• Decision Date: 23 December 1918
• Docket Number: No. 19099,19099
• Citation: 207 S.W. 792
• Parties: REGAN v. DICKMANN, Sheriff.
• Court: Missouri Supreme Court

207 S.W. 792

REGAN v. DICKMANN, Sheriff.

No. 19099

Supreme Court of Missouri, Division No. 2.

December 23, 1918.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Replevin by Mrs. L. A. Regan against Joseph F. Dickmann, Sheriff. From a judgment for defendant, plaintiff appeals. Affirmed.

J. Sydney Salkey and Safford & Marsalek, all of St. Louis, for appellant.

Davis Biggs and Wilkins Jones, both of St. Louis, for respondent.

FARIS, J.

Plaintiff brought replevin for an automobile. Defendant, the then sheriff of the city of St. Louis, answered (a) by general denial and (b) by a special plea that he took and held the property described in the action of replevin, as the property of L. D. Barrere and his wife under and by virtue of an execution in favor of the Le Grand Jones Improvement Company and against said Barreres. This special plea in defendant's answer is important, and in full, formal parts omitted, read thus:

"Defendant, for further answer to plaintiff's inn) petition, states that on or about March 31, 1914, the Le Grand Jones Improvement Company obtained judgment against L. D. Barrere and Mrs. L. D. Barrere in the Ninth district justice of the peace court in the city of St. Louis, Mo.; that a transcript of said judgment, being numbered 19299, was filed in the circuit court of the city of St. Louis, Mo., on or about April 7, 1914.

"Defendant further states that a writ of execution was issued from the clerk's office of the circuit court, city of St. Louis, being numbered 7, being returnable to the October term, 1914, of said court, in favor of Le Grand Jones Improvement Company and against L. D. Barrere and Mrs. L. D. Barrere, and directed to the sheriff of the city of St. Louis, and was delivered to Joseph F. Dickmann, as such sheriff, to be executed by him, and the said Joseph F. Dickmann, sheriff, executed said writ at the request of said Le Grand Jones Improvement Company, by taking as the property of the said L. D. Barrere and Mrs. L. D. Barrere one five-passenger Chalmers Detroit touring automobile.

"Plaintiff, Mrs. L. A. Regan, claimed all of said property according to the third section of the act of the General Assembly of the state of Missouri, entitled `An act concerning the duties of the sheriff and marshal in the county of St. Louis in relation to the levy and sale of such property, under execution or attachment, as may be claimed by third persons,' approved March 3, 1855, and in the manner therein mentioned, being now applicable to the city of St. Louis, Mo.

"Whereupon said Joseph F. Dickmann, sheriff of the city of St. Louis, demanded of the Le Grand Jones Improvement Company an indemnification bond with good and sufficient sureties, in the amount of $1,000, being double the amount of the value of the property named in claimant's affidavit, which bond said Le Grand Jones Improvement Company furnished."

Upon the coming in of defendant's answer, plaintiff filed her motion to strike therefrom the above special plea. This motion is important, and, caption and other formal parts omitted, it reads thus:

"Comes now the plaintiff above named, and moves the court to strike from defendant's answer herein filed all the matter contained in paragraphs 1, 2, 3, and 4 thereof, beginning with the words, `Defendant, for further answer to plaintiff's petition, states,' and ending with the words, `which bond said Le Grand Jones Improvement Company furnished,' and for grounds of this motion plaintiff states that the facts stated in said paragraphs are immaterial and irrelevant and fail to constitute any defense to the cause of action set out in plaintiff's petition.

"That the act entitled `An act concerning the duties of the sheriff and marshal in the county of St. Louis in relation to the levy and sale of such property, under execution or attachment, as may be claimed by third parties,' approved March 3, 1855, and the amendments thereof, is unconstitutional and void, for the reason that said act is a special and local law prohibited by article 4, section 53, paragraphs 17 and 32 of the Constitution of Missouri. "That all the acts and facts set out in said answer and done under and by virtue of said act of March 3, 1855, and the amendments thereof, are null and void and of no effect, and constitute no defense to this action."

The court overruled plaintiff's motion to strike out. Plaintiff refused to plead further, and the defendant thereupon filed his motion for judgment upon the pleadings, which was sustained, and judgment was rendered for defendant for $500, pursuant to stipulation filed that the judgment should in any event be limited to that sum. Plaintiff after the conventional way has brought the case up to us upon the constitutional question raised in her motion to strike out and discussed in the opinion.

I. It is fundamental that the ultimate effect of the motion of plaintiff to strike out part of defendant's answer, coupled with the ruling thereon of the trial court, plaintiff's subsequent refusal to plead further, and the court's judgment upon the pleadings, is to admit, for the purposes of...