Severs v. Williamson

• Decision Date: 17 December 1946
• Docket Number: 27055
• Citation: 198 S.W.2d 368
• Parties: SEVERS et al. v. WILLIAMSON et al
• Court: Missouri Court of Appeals

198 S.W.2d 368

SEVERS et al. v. WILLIAMSON et al

No. 27055

Court of Appeals of Missouri, St. Louis

December 17, 1946

'Not to be reported in State Reports.'

J Grant Frye and Gerald B. Rowan, both of Cape Girardeau, for appellants.

R. P Smith, of Cape Girardeau, for respondents.

OPINION

McCULLEN

This is an appeal arising out of what, in effect, are three law suits which were all tried together as one. The case was tried before the court without a jury -- the parties having waived a jury.

The first of the three actions is by appellants, as plaintiffs below, for damages on a replevin bond for the taking and conversion of certain personal property by respondents, who were defendants below. There was a finding and judgment on this phase of the case in favor of plaintiffs and against defendants in the sum of $ 100. The second is a counterclaim which was set up in the answer of defendants, praying for the foreclosure of a mortgage given by plaintiff William Severs to secure a note given to defendant Pat Williamson. The finding and judgment on this phase of the proceeding were in favor of defendant Pat Williamson and against plaintiff William Severs for $ 402.50 as principal on the note, plus $ 64.40 as interest, and $ 46.69 as attorney's fees, and the court ordered foreclosure of the mortgage and that the property therein described be sold to satisfy said counterclaim. The third phase of the proceeding is an action for damages set up in the reply by both plaintiffs against both defendants for breach of contract. The court made no finding and rendered no judgment upon this third alleged cause of action. The costs were ordered taxed equally against the parties. After an unavailing motion for a new trial plaintiffs appealed.

The cause was not argued orally in this court by either party, and only plaintiffsappellants filed a brief herein.

Appellants, as plaintiffs below, alleged in their petition herein that they were the owners and entitled to the possession of a black mare, a brown filly colt, and a pair of white guineas; that defendants instituted a replevin action in a justice court in Bollinger County alleging that they were entitled to the possession of such chattels and that said chattels were wrongfully taken from them; that defendants posted in the replevin action what purported to be a replevin bond which was signed only by defendants; that a writ of replevin was issued, the property delivered to defendants, and that they had disposed of the property; that a judgment was had in the justice court and an appeal taken to the circuit court, and that plaintiffs moved in that court to require defendants to post a sufficient replevin bond, which motion was sustained, but that defendants failed to post such bond and the circuit court ordered the sheriff to take such property and deliver it to plaintiffs, and the replevin cause was dismissed; that a writ was issued commanding the sheriff to re-take such property, but that the sheriff found defendants had disposed of the property. Plaintiffs prayed damages in the sum of $ 200.

Respondents, who were defendants below, denied in their answer herein that plaintiffs owned and were entitled to the possession of the chattels; admitted that plaintiffs had possession thereof prior to the replevin action; admitted that they, the defendants, executed the bond described in the petition, but denied that it was a replevin bond, as contemplated by statute, and alleged that such fact was adjudicated by the circuit court of Bollinger County; admitted that a judgment was rendered in the justice court; that there was an appeal to the circuit court; that defendants were ordered to post a bond and failed to comply with the order; that their replevin cause was dismissed and a writ was issued commanding the sheriff to re-take the property, and that the sheriff found defendants had disposed of it; and defendants denied that plaintiffs had been damaged.

By way of counterclaim, defendants alleged that plaintiff William Severs executed to defendant Pat Williamson a note for $ 402.50, and secured the same by a chattel mortgage on certain named chattels, and that said note and mortgage were then in default and the amount due thereon was $ 447.50. Defendant Pat Williamson prayed judgment on said counterclaim for said sum, together with interest and an attorney's fee, and that the same be declared a lien on the property described in the chattel mortgage.

In their reply, plaintiffs admitted the execution of the note and mortgage, but denied all other allegations in the counterclaim. They further alleged in their reply that there was a misjoinder of parties to the counterclaim in that defendant Ava Williamson had no interest therein. For further defense to the counterclaim plaintiffs, in their reply alleged that at the time of the execution of the note and mortgage, on December 18, 1943, they entered into an agreement with defendants that plaintiffs would leave land they owned in Bollinger County and move to land of defendants in Cape Girardeau County for the purpose of caring for d...