Rosenblatt v. Winstanley

• Decision Date: 22 May 1916
• Docket Number: No. 12061.,12061.
• Citation: 186 S.W. 542
• Parties: ROSENBLATT et al. v. WINSTANLEY, Sheriff.
• Court: Missouri Court of Appeals

186 S.W. 542

ROSENBLATT et al. v. WINSTANLEY, Sheriff.

No. 12061.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Appeal from Jackson Circuit Court; Hon. W. O. Thomas, Judge.

"Not to be officially published."

Suit in replevin by Samuel Rosenblatt and others against Edward Winstanley, Jr., Sheriff of Jackson County. Judgment for plaintiffs, and defendant appeals. Reversed, and cause remanded.

Ellis, Cook & Barnett, of Kansas City, for appellant. Jay Read and H. H. McCluer, both of Kansas City, for respondents.

JOHNSON, J.

This is a suit in replevin begun by plaintiffs August 5, 1914, against the sheriff of Jackson county, to recover certain fur garments of the alleged value of $1,250, together with damages laid at $750, resulting from the wrongful taking and detention of the property. Plaintiffs obtained possession of the property from the coroner, who seized it under the writ, and during the pendency of this suit removed it from Kansas City to New York, where they are engaged in business, and there turned it over to an auctioneer, who sold it, realizing net proceeds of $612.50. The answer alleged that defendant, as sheriff, lawfully seized and was in possession of the property under a writ of attachment issued December 6, 1912, in a suit brought in the circuit court of Jackson county by Ephraim Siff et al., against Joe Jackson et al., that the value of the property was $2,000, and that defendant, "by virtue * * * of the delivery of said property to the plaintiffs by reason of the bringing of this action, has been damaged in the sum of $500." The jury in their verdict found that plaintiffs were the owners and entitled to the possession of the property at the time of the institution of this suit, and assessed their damages in the sum of $401 for the taking and detention thereof. Judgment was rendered in accordance with the verdict, and defendant appealed. In their brief and argument counsel for defendant do not attack the judgment "for the property," but do argue that the assessment of damages for the taking and detention of the property is unsupported by substantial evidence.

The facts in evidence bearing on this issue are as follows: Jackson and Klein, itinerant retail venders of fur garments, obtained a quantity of such goods from manufacturers in New York on consignment, rented a storeroom in Kansas City, and were conducting a retail sale of the goods thus procured when Siff & Cohen, manufacturers of fur garments in New York, brought suit against them in December, 1912, upon an alleged demand, and caused the goods in controversy to be seized by the defendant sheriff under a writ of attachment issued in aid of that suit. The goods thus taken consisted of fur garments of the value at that time of $1,119.50. The proof of this value offered by plaintiffs is not satisfactory, but in view of the averment of a greater market value in the answer, we accept it as sufficient. In January, 1913, Siff & Cohen procured an order of court in the attachment suit for the sale of the goods as perishable property, but a notice served on them by the attorney of Rosenblatt Bros., the present plaintiffs, that the latter were the owners of the property, and would hold Siff & Cohen "responsible for all damages that may be incurred, or that may accrue to said Rosenblatt Bros. by reason of the wrongful seizure and sale of the within mentioned property," caused Siff & Cohen to abandon the sale, and the property remained in the possession of defendant until August 5, 1914, when it was taken by the coroner under the writ of replevin and delivered to plaintiffs. The only evidence in the record relating to the subject of damages appears in the deposition...