Shapiro Upholstering Co. v. Connors

• Citation: 45 S.W.2d 892
• Decision Date: 02 February 1932
• Docket Number: No. 21847.,21847.
• Parties: SHAPIRO UPHOLSTERING CO. v. CONNORS.
• Court: Missouri Court of Appeals

45 S.W.2d 892

SHAPIRO UPHOLSTERING CO. v. CONNORS.

No. 21847.

St. Louis Court of Appeals. Missouri.

February 2, 1932.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action in replevin by the Shapiro Upholstering Company, a corporation, against Mrs. J. Connors. Judgment for defendant, and plaintiff appeals.

Affirmed.

Leahy, Saunders & Walther, and J. L. London, and Milton E. Levy, all of St. Louis, for appellant.

Wurdeman, Stevens & Hoester, of Clayton, and John D. Schuster, of Maplewood, for respondent.

HAID, P. J.

This was a replevin action for certain furniture based upon a chattel mortgage alleged to have been executed by defendant to plaintiff for the purchase price of such furniture.

A plea in bar was filed setting up that the same cause of action, involving the same issues, was tried and determined before a justice of the peace in St. Louis county, and, after hearing evidence and being fully advised in the premises, the justice found in favor of the defendant and against the plaintiff, and that, no appeal having been prosecuted from such judgment within the time allowed by law, such judgment became res judicata.

The plea in bar was tried to the court without a jury, and the court sustained the plea, and the judgment entry discloses that the plaintiff thereupon dismissed the suit and costs were adjudged against it. The plaintiff thereupon filed a motion for new trial, which was overruled, and this appeal prosecuted.

Upon the appeal, no question is raised concerning the admission or rejection of evidence. The principal complaint on the appeal is that, the judgment of the justice of the peace having been entered as a dismissal, such order constituted in effect a nonsuit permitting the plaintiff to bring a new action within one year thereafter under the provisions of section 874, Revised Statutes of Missouri 1929.

The state of the record, however, precludes our consideration of this question. At the close of the evidence, the court made the following finding:

"The Court finds that the Tucker Shapiro Upholstering Company sued before Judge Fiedler, summons was issued and service was had and the parties appeared in response to it. The same attorney that pleaded that proceeding appeared in this case here and testified, and the same chattel mortgage which is in controversy in the case at bar was in controversy there. Evidence was taken according to his statement and the court record of the Justice of the Peace and his decision, and that decision was a dismissal of the plaintiff's cause of action and the dismissal of the counterclaim. There was no appeal taken from it and now they come into this court under another name and try to litigate the same subject when, as a matter of fact, the same personnel was represented there as plaintiff and defendant and the same subject matter was litigated and determined.

"Plea in bar will be sustained."

The record then discloses the following: "To which action and ruling and order of the court counsel for plaintiff then and there duly excepted and still excepts."

No request for special findings under section 952, Revised Statutes of Missouri 1929, was made by either party, and, as is shown above, the plaintiff saved no exception to the findings made by...