Service Purchasing Co. v. Brennan

• Decision Date: 13 October 1930
• Docket Number: No. 29286.,29286.
• Citation: 32 S.W.2d 81
• Parties: SERVICE PURCHASING CO. v. BRENNAN.
• Court: Missouri Supreme Court

32 S.W.2d 81

SERVICE PURCHASING CO. v. BRENNAN.

No. 29286.

Supreme Court of Missouri, Division No. 2.

October 13, 1930.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

Action by the Service Purchasing Company against Edward Brennan. Plaintiff recovered judgment in the justice's court and on appeal in the circuit court, and defendant appeals.

Cause transferred to St. Louis Court of Appeals.

August Walz, of St. Louis, for appellant.

Roy H. Bergmann, of St. Louis, for respondent.

DAVIS, C.

Plaintiff filed its petition, in a justice of the peace court in the city of St. Louis, for damages for conversion, grounded on willful and malicious injuries to plaintiff's property, growing out of the collection and retention by defendant of his wages, subsequent to the written assignment and sale of same by defendant to plaintiff. On defendant's appeal from the justice of the peace court to the circuit court, a jury was waived, and judgment was rendered in the circuit court in favor of plaintiff for the sum of $22. Defendant appealed, and was allowed an appeal to this court.

Our jurisdiction must appear before we are permitted to determine the merits of the controversy. If we do not have appellate jurisdiction, then we must transfer the cause to the St. Louis Court of Appeals. To that end we summarize the record with respect to defendant raising a constitutional question, for no other ground appears authorizing us to take appellate jurisdiction.

To plaintiff's petition defendant filed in the justice of the peace court a plea in abatement. It reads:

"Now comes the defendant and moves the court to abate the above-styled cause for the reason:

"First. That defendant was adjudicated a bankrupt in the District of the United States in the City of St. Louis, on May 9, 1927, and that the same is now pending in said court.

"Second. That the claim of plaintiff has been listed in said proceedings in bankruptcy.

"Third. That said claim of plaintiff was submitted to the Referee in Bankruptcy and was disallowed by him."

The bill of exceptions submitted fails to show that defendant objected to the introduction of evidence for the reason that a recovery by plaintiff would contravene the provisions of the Fourteenth Amendment to the Constitution of the United States, which defendant now urges, or for any other reason.

Defendant first attempts to raise a constitutional question by a declaration of law offered, which the court refused. The pertinent portion of the declaration of law reads:

"That his claim constitutes a debt and defendant has been adjudicated a bankrupt and plaintiff's claim being listed in his schedules, defendant is entitled to a discharge of the claim in bankruptcy, and to hold otherwise would be contrary to the Fourteenth Amendment to the Constitution of the United States in that defendant would not be given the equal protection of the law and would abridge the privileges or immunities of the citizens of the United States and would deny him the equal protection of the law.

"That the claim of plaintiff does not come within Section 17 of the United States Bankruptcy Law (11 USCA § 35) but is a provable claim in bankruptcy."

Defendant complains in his brief that the judgment violates the Fourteenth Amendment to the United States Constitution.

Plaintiff's theory of recovery is that the appropriation by defendant of the proceeds of his salary after assigning it was a conversion and that, under section 17 of the Bankruptcy Act of 1898 (section 35, USCA title 11, Bankruptcy, p. 150), a conversion is willful and malicious injury to the property of another, and thus fails to release the bankrupt from the debt. Defendant's position in its last analysis is that, if the preceding section of the Bankruptcy Act is so construed as to hold that a conversion is tantamount to a willful and malicious injury to the property of another, the section is unconstitutional, because it is in conflict with the Fourteenth Amendment to the United States Constitution. There seems to be a contrariety of opinion as to whether a conversion is tantamount to a willful and malicious injury to property (title 11, Bankruptcy, USCA pp. 174, 175, cases cited in notes 79, 80), but as we have reached the conclusion that we are without appellate jurisdiction, we may not determine the question.

I. The attack made on section 17 of the Bankruptcy Act (11 USCA § 35), as shown by the instruction and motion for a new trial, fails to challenge its constitutionality in any event. The challenge is not that the section is unconstitutional, but that if it is interpreted to hold that a conversion is tantamount to the...