Shanks v. St. Joseph Finance & Loan Co.

• Decision Date: 28 July 1942
• Docket Number: No. 37969.,37969.
• Citation: 163 S.W.2d 1017
• Parties: SHANKS v. ST. JOSEPH FINANCE & LOAN CO.
• Court: Missouri Supreme Court

163 S.W.2d 1017

SHANKS v. ST. JOSEPH FINANCE & LOAN CO.

No. 37969.

Supreme Court of Missouri, Division No. 1.

July 28, 1942.

Appeal from Circuit Court, Buchanan County.

Action by Orville Shanks against St. Joseph Finance & Loan Company to recover damages for alleged wrongful invasion of plaintiff's home and seizure and conversion of certain personal property belonging to plaintiff. From a judgment for defendant, plaintiff appeals on theory that a constitutional question is involved.

Case transferred to the Kansas City Court of Appeals.

Horace Merritt, W. C. Meyer, and R. F. Mumford, all of St. Joseph, for appellant.

Alva F. Lindsay, of St. Joseph, David B. Lichtenstein and R. Bruce Snow, both of St. Louis, and George L. Gisler, of Kansas City, for respondent.

Roy McKittrick, Atty. Gen., and Covell R. Hewitt, Asst. Atty. Gen., for D. R. Harrison, Com'r of Finance.

DALTON, Commissioner.

This is an action for $1,000 actual and $5,000 punitive damages for alleged wrongful, malicious and oppressive invasion of plaintiff's home and the seizure and conversion of certain personal property belonging to plaintiff. The verdict and judgment were for defendant. Plaintiff has appealed to this court on the theory that a constitutional question is involved.

The petition alleged that defendant was a Missouri corporation doing business under the Missouri Small Loan Act, Art. 7, § 8150 et seq., Chap. 39, R.S.1939, Mo.R.S.A. § 8150 et seq.; that on or about the 10th day of April, 1940, plaintiff made application to defendant for a loan of $149.20; that a note for said sum, payable in monthly installments, with the first installment due on May 10, 1940, was prepared and executed by plaintiff; that to secure said note plaintiff executed a chattel mortgage upon certain of plaintiff's described personal property; that on April 27, 1940, plaintiff asked an extension of time on the first installment from May 10th to May 28th, 1940; that "defendant agreed to extend the date for payment of said installment to the 28th day of May, 1940, upon his (plaintiff's) paying interest on the unpaid balance then unpaid at the rate of 2½% per month"; that plaintiff paid defendant said interest in the sum of $2.50; that plaintiff relied upon defendant's agreement to extend the time for the payment for said first installment; that in violation of its said agreement and prior to any default or violation of the terms of said note or chattel mortgage, the defendant on the — day of May, 1940, wrongfully, maliciously and oppressively invaded plaintiff's home and seized the personal property described in the chattel mortgage and other personal property of plaintiff which was not described in the chattel mortgage and converted all of said property to its (defendant's) own use.

The petition further alleged that: "Said note is illegal and the chattel mortgage securing same is illegal; that the act of 1927 Session Acts 1927, pages 252 to 258, and the Act of 1929, Session Acts pages 201 to 204 amending same and all amendments thereof to this date, are invalid and void because the said acts violate the constitution of Missouri in this, that the said acts authorize the charge and collection of 2½% per month interest on all unpaid balances of loans under $300, which interest charge is in violation of the Constitution of Missouri [Mo.R.S.A.] which by Article IV, subsection (20), of Section 53, the legislature is prohibited from passing any local or special law fixing the rate of interest, and the general law, fixing the rate of interest at six per cent per annum and not more than eight per cent per annum by written contract, is violated by this act, and being a special law, applying to the certain or special group of persons, co-partnership, or corporations who may be licensed, is therefore unconstitutional and void.

"Plaintiff further states and charges that said note and mortgage is void, and the said acts under which the defendant took same and under which it is doing business is unconstitutional, and in violation of that section of Article XII, Section 26, wherein it is provided that no act of the General Assembly authorizing or creating corporations or associations with banking powers, nor amendments thereto, shall go into effect, or in any manner be enforced, unless same shall be submitted to a vote of the qualified voters of the state, etc., which has never been done as to the acts hereinbefore referred to under which the defendant corporation is doing business, and which acts give such corporations as the defendant banking powers, and is therefore unconstitutional and void, and said note and chattel mortgage is therefore illegal and utterly without any force and effect."

Plaintiff further alleged that "even under the conditions of the said illegal and void note and mortgage" and "even though said note and chattel mortgage were legal," the defendant did illegally and maliciously invade his home and seize, remove and convert his said property to defendant's use to plaintiff's damage.

Defendant first demurred to said petition, but its demurrer was overruled. Defendant then moved to strike out of the petition the said two quoted paragraphs, supra, for the following reasons: "(1) That said two paragraphs contain matters irrelevant to any issue in this case; (2) because the two said paragraphs contain matters which are irrelevant and/or redundant to any issue in this case; (3) because said two paragraphs contain the conclusion of the pleader or the plaintiff and do not contain a statement of the facts or any facts upon which the plaintiff could base a cause of action against the defendant; and (4) because the two paragraphs contain the conclusion of the pleader or plaintiff and not a statement of the facts."

The motion to strike was sustained, and defendant thereupon filed a general denial of the other allegations of the petition. Plaintiff filed a term bill of exceptions, preserving the motion to strike, the ruling thereon and his exceptions thereto, and, thereafter, proceeded to a trial of said cause before a jury. The evidence was not transcribed and no bill of exceptions was filed, but appellant seeks to present the cause here on the record proper.

Appellant has set out in his abstract of the record the instructions given and refused and, also, his motion for a new trial, as if they were parts of the record proper. The motion for a new trial, as set out, does not mention or complain of the court's action in ruling the motion to strike out part of plaintiff's petition.

Appellant assigns error (1) on the court's action in sustaining defendant's motion to strike out, (2) on the refusal of the court to give certain instructions requested by plaintiff, and (3) on the giving of an...