Seymour Bank v. Kelley
| Decision Date | 05 September 1986 |
| Docket Number | No. 14387,14387 |
| Citation | 715 S.W.2d 586 |
| Court | Missouri Court of Appeals |
| Parties | The SEYMOUR BANK, Respondent, v. Theodore KELLEY, Appellant. |
Harry Rupert Stafford, Jr., Hartville, for appellant.
Michael J. Patton, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, and Grant Q. Haden, Wade & Haden, Ava, for respondent.
A jury returned a verdict in favor of The Seymour Bank ("plaintiff") and against Theodore Kelley ("defendant") in a replevin action brought by plaintiff. Judgment was entered accordingly. Defendant appeals, briefing three assignments of error.
The record on appeal contains no motion by defendant for a new trial, and the docket sheet furnished us is barren of any indication that one was filed.
Rule 78.07, Missouri Rules of Civil Procedure (16th ed. 1985) provides, in pertinent part:
"In jury tried cases, other than cases tried with an advisory jury, allegations of error to be preserved for appellate review must be included in a motion for a new trial except that questions of jurisdiction over the subject matter, questions as to the sufficiency of the pleadings to state a claim or defense and questions authorized by Rule 72.01 to be presented in motions for judgment need not be included in a motion for new trial."
Rule 72.01, referred to in Rule 78.07, above, need not be quoted, as defendant, in this appeal, raises no issue authorized by Rule 72.01 to be presented in a motion for judgment. Our review is consequently limited to such assignments of error, if any, as raise questions of jurisdiction over the subject matter or questions as to the sufficiency of the pleadings to state a claim or defense. Williams v. Southern Pacific Railroad Co., 338 S.W.2d 882, 883 (Mo.1960); Dixon v. Model Cities Health Corp. of Kansas City, 651 S.W.2d 498, 499 (Mo.App.1983).
The only assignment of error arguably qualifying for consideration is defendant's point 1, which states:
"The trial court erred in granting plaintiff's motion in limine because it ruled as a matter of law that the writ of replevin was properly issued despite the failure of plaintiff to plead facts in the affidavit of replevin (and verified petition) stating the reason for defendant's default and the facts which entitled plaintiff to immediate possession of the collateral and despite the lack of any findings of fact in the order of delivery which entitled plaintiff to immediate possession of the collateral."
In order to understand this contention, a brief summary of the evidence is necessary.
On May 2, 1983, defendant signed a promissory note for $13,076.66, payable to the order of plaintiff. The note called for five monthly payments of $275 each, beginning June 10, 1983, and a final payment of $12,644.34 due November 10, 1983. A "security agreement," executed by defendant contemporaneously with the note, granted plaintiff a security interest in certain livestock and equipment owned by defendant, to secure payment of the note. We henceforth refer to this property as "the collateral."
On March 28, 1984, plaintiff filed a "petition in replevin," averring that "said note is now in arrears," that plaintiff had demanded payment thereof in writing, that defendant had possession of the collateral, and that plaintiff was "lawfully entitled to immediate possession" thereof.
Attached to the petition and incorporated therein by reference were, among other documents, a copy of the note (the reverse side of which showed the payments made by defendant and the respective dates thereof), and a copy of the security agreement.
Inasmuch as plaintiff was requesting immediate possession of the collateral, plaintiff filed, along with its petition, an "affidavit in replevin," endeavoring to fulfill the requirements of Rule 99.03, Missouri Rules of Civil Procedure (15th ed. 1984). That rule read then as it does now:
"When a party requests immediate possession of personal property an affidavit shall be filed stating:
(a) The description of the property;
(b) Facts showing the party is entitled to the possession of the property;
(c) The actual value of the property;
(d) The property has not been seized under any legal process;
(e) The party is in danger of losing the property unless immediate possession is obtained or the property is otherwise secured."
Plaintiff's petition, with its attachments, and the affidavit in replevin were presented to the trial court the same day they were filed, March 28, 1984, along with a "replevin bond" in the amount of $24,086.46. The trial court approved the bond, and issued an "order of delivery in replevin" commanding the sheriff to take possession of the collateral and deliver it to plaintiff. 1 The sheriff carried out the order, and the collateral was ultimately sold by plaintiff.
On the morning of trial, before the veniremen entered the courtroom, plaintiff advised the trial court and defendant that it (plaintiff) was asserting no claim against defendant "for any deficiency."
Plaintiff then called the court's attention to (a) a paragraph of defendant's answer that alleged defendant was "denied due process of law for the reason that the affidavit filed in support of the petition for replevin was deficient and that it failed to plead facts and pleaded only conclusory [sic] allegations," (b) a paragraph of defendant's answer that alleged defendant was "denied the due process of law for the reason that the notice under Supreme Court Rule of Civil Procedure 99.05 is deficient in that it failed to fully advise defendant of his rights to a hearing and of his right to post a bond to retain the property," (c) a paragraph of defendant's answer that alleged the order of delivery "was deficient in that it failed to make the requisite findings that plaintiff had the right to immediate possession," and (d) a paragraph of defendant's answer that alleged plaintiff's petition "fails to state a claim upon which relief may be granted."
The trial court, after studying those segments of defendant's answer, ruled that the affidavit filed in support of plaintiff's request for immediate possession of the collateral "was sufficient under the rule and the statute," that the notice to defendant "was sufficient to fully apprise the Defendant of his rights pursuant to the remedies set forth in Rule 99.05," that the order of delivery issued by the court was "sufficient," and that plaintiff's petition "does state a claim upon which relief may be granted."
When the trial court announced those rulings, counsel for plaintiff stated:
Following a discussion between the court and counsel, the trial court ruled there were only two issues to be submitted to the jury: first, whether defendant was in default on the note at the time the petition was filed, and was thus wrongfully detaining the collateral, and, second, if defendant was not in default, the extent of his damages, if any, resulting from the seizure of the collateral.
Having made that determination, the trial court granted plaintiff's motion in limine.
The thrust of defendant's point 1, as we comprehend it, is that plaintiff's petition and the affidavit in support of plaintiff's request for immediate possession of the collateral failed to fulfill the requirements of Rule 99.03, supra, therefore the trial court never acquired jurisdiction to award plaintiff possession of the collateral. Consequently, insists defendant, the judgment should be reversed and the cause should be remanded for the sole purpose of determining the damages to be awarded him for plaintiff's wrongful seizure and conversion of the collateral. 2
In support of this contention, defendant cites State ex rel. Tallen v. Marsh, 633 S.W.2d 458 (Mo.App.1982). There, a finance company brought a replevin suit seeking immediate possession of an automobile. In support of that request, the finance company attached to its petition an affidavit endeavoring to comply with Rule 99.03, supra. The trial court issued an order directing that the automobile be seized from the debtor and delivered to the finance company. The order was carried out.
The debtor promptly filed a motion to quash the order of delivery, asserting, inter alia, that the affidavit did not comply with Rule 99.03. The debtor prayed that the automobile be returned to him, and that the finance company's petition be dismissed. The trial court denied the motion.
The debtor then sought a writ of prohibition barring the trial court from exercising further jurisdiction. The appellate court, noting that the affidavit alleged merely that the finance company was entitled to possession because of the debtor's failure to make required contract payments, held the affidavit failed to comply with Rule 99.03. An affidavit under that rule, said the court, must state facts showing that the suing party is entitled to possession. The opinion continued:
" ... Lawyers have learned to be suspicious of conclusory statements. They often conceal more than they reveal. The affidavit here does not say what the contract was, who the parties were, what payments were required to be made, and wherein the payments had not been made. It does not even say that the contract payments were secured by a lien upon the car. It does not attach a copy of the security agreement, if any, or any documentation....
This lack of evidentiary facts robs the affidavit of its legal force as a basis for the order of delivery." Id. at 461.
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Sedalia Mercantile Bank and Trust Co. v. Loges Farms, Inc.
...not have obtained re-delivery if it had prevailed at the hearing on the issue of right to possession. The case of Seymour Bank v. Kelley, 715 S.W.2d 586 (Mo.App.1986), presents a similar fact situation in that the plaintiff sold the collateral before trial of the case. The circumstances are......
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...Accordingly, any alleged flaws in the pre-judgment possession procedure cease to be of any consequence. Seymour Bank v. Kelley, 715 S.W.2d 586, 591 (Mo.App.1986). II The jury was instructed to find for defendants on their counterclaim for conversion if it determined 1) defendants owned and ......