Schell v. F. E. Ransom Coal & Grain Co.

• Decision Date: 18 February 1935
• Docket Number: No. 18274.,18274.
• Court: Missouri Court of Appeals
• Parties: SCHELL v. F. E. RANSOM COAL & GRAIN CO.

79 S.W.2d 543

SCHELL v. F. E. RANSOM COAL & GRAIN CO.

No. 18274.

Kansas City Court of Appeals. Missouri.

February 18, 1935.

Rehearing Denied March 4, 1935.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

"Not to be reported in State Reports."

Action by the F. E. Ransom Coal & Grain Company against Fred P. Schell, Jr., in which plaintiff secured a judgment, and, upon execution issued thereon, the sheriff levied on certain personal property as belonging to Fred P. Schell, Jr. After the levy, Fred P. Schell, Sr., served upon the sheriff a written claim of ownership, and an answer was filed by Ransom Coal & Grain Company. From an adverse judgment, Fred P. Schell, Sr., appeals.

Affirmed.

Jay L. Oldham, of Kansas City, for appellant.

Lawson & Hale, of Liberty, for respondent.

SHAIN, Presiding Judge.

It appears that F. E. Ransom Coal & Grain Company, repondent herein, had secured a judgment against Fred P. Schell, Jr., in the circuit court of Clay county, Mo., and that upon execution issued on the judgment the sheriff of Clay county levied on personal property, consisting of farm and dairy equipment and life stock, to satisfy said judgment. The sheriff levied on said property as belonging to said Fred P. Schell, Jr.

After the levy was made by the sheriff, Fred P. Schell, Sr., served upon the sheriff a written claim of ownership of all of the personal property that had been levied on as the property of the said Fred P. Schell, Jr., as aforesaid.

The issues being made up by notice aforesaid and the answer filed by the Ransom Coal & Grain Company, wherein the ownership asserted by Fred P. Schell, Sr., is denied, the cause was taken up and tried in the circuit court of Clay county, Mo., under the provisions of sections 1184 and 1185 of article 19, chapter 5, R. S. Mo. 1929 (Mo. St. Ann. §§ 1184, 1185, pp. 1436, 1439).

Trial was by jury. The jury found issues against Fred P. Schell, Sr. Judgment was entered accordingly, and Fred P. Schell, Sr., has appealed.

Opinion.

In his brief filed herein, Fred P. Schell, Sr., the appellant, sets forth what is presented as "Assignment of Errors," as follows:

"I. Instructions A and B asked by plaintiff and refused by the court should have been given.

"II. The court erred in giving instructions for defendant, Nos. 3 and 5.

"III. The court erred in admitting incompetent, irrelevant and immaterial evidence offered by the defendant.

"IV. The court erred in excluding competent, relevant and material evidence offered by plaintiff.

"V. The verdict is not within the issue made by the pleadings.

"VI. The verdict is against the evidence and weight thereof.

"VII. That the verdict is against the law as applied to the evidence in this case and against the law set out in the instruction given by the court.

"VIII. That the court erred in overruling plaintiff's motion for a new trial and in arrest of judgment."

Assignment one, we conclude, must be considered by us for the reason that it is our duty to examine the evidence as a whole in order to pass upon the question as to whether or not it was error to refuse a directed verdict.

Assignment five, we conclude, presents a question for review.

As to all of the other assignments above, none of same present any question for review.

"Points not supported by assignments of reasons will not be noticed." Kiger v. Sanko (Mo. App.) 1 S.W.(2d) 218.

"Complaints of prejudicial error not specifying wherein the error lies present no point for consideration." Martin v. Continental Insurance Co. (Mo. App.) 256 S. W. 120.

"Appellate court will not search record for errors, existence of which is stated in general terms." Williams v. American Exchange Bank, 222 Mo. App. 483, 280 S. W. 720.

Appellate courts are duty bound to give consideration to assignment of error when specifically set forth either under head of "Assignment of Errors" or under the head of "Points and Authorities."

Under the head of points and authorities, the appellant presents under points II, VII, and VIII, the same assignments as are found in I and V of "Assignment of Errors."

Under points and authorities, the appellant states several abstract propositions of prime law all of which may find application in accordance to facts where presented in a cause, but cannot be considered as assignment of error.

The appellant's contention can be best understood by first taking up his claim of error, as to instruction B offered by him and refused by the court.

The appellant's offered instruction B presents that the burden of proof rests upon the execution creditor to show, by a preponderance of evidence, that the property levied upon was the property of Fred P. Schell, Jr., who was the judgment debtor.

In the case at bar, the appellant herein in the proceedings below asserted the affirmative of the issue. The burden of proof always remains where it is placed by the pleadings in the first instance. Major v. Kidd, 261 Mo. 607, loc. cit. 619, 170 S. W. 879.

We conclude that the refusal of offered instruction B was not error.

The appellant's refused instruction A is a peremptory instruction in the nature of a demurrer directing a verdict for respondent below, appellant herein.

The claimant, appellant herein, in his notice of claim of ownership says that "he is the owner of the following described personal property, to-wit," and thereafter enumerates the property that was taken by execution. In his notice of claim he does not give the source of title.

In the trial of the case the appellant herein based his claim of ownership upon a claim that he had taken into his possession the property in question, at a time before the levy was made, by reason of default of payment of a note executed to him by Fred P. Schell, Jr., which note was secured, as claimed, by duly executed and recorded chattel mortgage on the property levied upon.

The property described in the chattel mortgage is as follows: "Sixty-eight (68) Holstein cows, twenty-six heifers, twenty-two calves and all other stock including horses, cattle, hogs, chickens, two trucks, and equipment in the buildings, and barns on the premises belonging to or appertaining to the dairy and farming business known as Schellcrest farm or Schellcrest Dairy in Clay County, Mo., at Ravena Station on the Liberty Highway number 69 and also all hay, corn or other feed which is now on said farm or may hereafter be on said farm."

The property taken under execution is described as: "1 corn binder, 1 Papec insulage cutter; 1 Sulkey gang plow; 2 plows 14 inch each; 1 McCormick Deering single road cultivator; 1 Admiral Hay Press; 1 4-wheel wagon with motor attached; 1 John Deere Corn binder; 1 old mowing machine with old tongue; 1 International Harvester Single row cultivator; 1 McCormick Mowing machine; 1 McCormick Deering farm tractor; 1 14 in. breaking plow; 1 Papec feed grinder; 1 lot of 6 inch belt; 3 steel barrels; two wood barrels, all located in the horse barn on Schellcrest Farm; also 1 De Lavel Cream Separator No. 15; 1 Milk Bottling machine, 4 valve, 1 Misc. lot of milk cans, 10 and 5 gal. capacity; 1 lot of milk bottles quarts, 1 lot of pint milk bottles, 1 complete refrigerator system and attachments in and adjacent to can house, all located on Schellcrest farm Also 21 head of Holstein yearling heifers, all with horns and now being in the pasture of Fred P. Schell, of Kansas City, Mo."

The chattel mortgage is shown as executed on September 15, 1930, and purports to cover live stock, farm and dairy machinery and equipment in general terms, and the only clue to identification of the property covered is a description of the farm or dairy where situate.

The levy under execution is shown as of May 24, 1933, and presents that all the property taken under execution was located on the same premises as is designated in the chattel mortgage. There is, however, nothing in the description in the chattel mortgage from which it can be determined that the property taken under the execution is the property covered by the chattel mortgage.

The appellant makes claim that he had taken possession of the property levied upon by reason of default in payment of his note secured by the chattel mortgage aforesaid on May 18, 1933, and, as to the twenty-one head of Holstein heifers, says that he, on May 24, 1933, had them taken over to a farm owned by him, known as the Robinson farm. It would appear from the evidence that the Robinson farm constituted a part of the dairy farm.

The manner of taking over the property claimed as covered by the chattel mortgage is evidenced by a written notice, as follows:

                              "Schellcrest Farm
                           "Holstein Friesian Cattle
                "F. P. Schell, Jr.               Liberty, Mo
                                              "May 18, 1933
                

"Fred P. Schell, Jr.: You are hereby notified that I have this day taken possession of all live stock, grain, machinery described in chattel mortgage of record in Book 15 at page 489 in the office of the recorder of deeds of Clay County, Missouri, on account of the non-payment of the indebtedness in said chattel mtg. described and I hereby appoint you, as my agent to look after said personal property for me, until further notice.

                            "Signed Fred P. Schell, Sr."
                

It appears that Schell, Sr., at the time of the trial herein, had the Schell, Jr., notes, and no foreclosure was shown as to the chattel mortgage and no credits shown as indorsed on the note which the chattel mortgage was given to secure.

On cross-examination, Mr. Schell, Sr., testified as follows:

"Q. Do you mean to tell this jury that simply because your son didn't get them and because you recognized him as a careless business man, you would hold those notes which are included in the other note you have against your own son?

"By Mr. Oldham: I object to the argument with the witness, for the reason it's immaterial. That's a personal matter with Junior in which nobody else is concerned. (The Court overruled the...