Sperling v. Stubblefield

• Decision Date: 15 March 1904
• Citation: 105 Mo. App. 489,79 S.W. 1172
• Parties: SPERLING et al. v. STUBBLEFIELD.
• Court: Missouri Court of Appeals

79 S.W. 1172

105 Mo. App. 489

SPERLING et al. v. STUBBLEFIELD.

St. Louis Court of Appeals. Missouri.

March 15, 1904.

CONVERSION — PURCHASERS WITH NOTICE — JUDGMENTS—ENTRY NUNC PRO TUNC—REQUISITE EVIDENCE—COURTS—SITTINGS—TRANSFERRED CAUSES.

1. The fact that an execution defendant, in surrendering property subsequently sold as his, remained in possession as agent, so that there was no visible change of ownership, is immaterial on the question of conversion by the execution purchaser, where, before he purchased, he was notified by the actual owner of the property whose the property was.

2. The rights of one who is not an innocent purchaser without notice are unaffected by the nature of the instrument as lease with option to purchase or conditional sale, under which his predecessor in interest claimed.

3. Where an act provided that all causes pending in the circuit court at one town when the act took effect should be transferred to the same court at another town, and be triable there, a cause originally tried in the circuit court at the former town, which, when the act took effect, was awaiting determination on appeal, was, when the appeal was dismissed, within the jurisdiction of the court at the latter town.

4. A motion for a nunc pro tunc record entry of judgment—i. e., to have a judgment that had in fact been rendered, but never recorded, entered of record as of the date of its rendition —cannot be made on oral testimony, but only on minutes, memoranda, or other written data appearing on the judge's or clerk's docket, the court records, or the files and papers in the cause.

5. The finding of the circuit court that the documentary evidence was sufficient to justify the order of a nunc pro tunc judgment entry is conclusive if supported by competent evidence.

6. The recital, in a motion of arrest, of an existing judgment, with the verdict, is competent,

and sufficient to support a finding that judgment had been rendered, and to justify the entry of judgment nunc pro tunc.

Appeal from Circuit Court, Stoddard County; F. R. Dearing, Judge.

Action by William Sperling and others against William Stubblefield. From a judgment for plaintiffs, defendant appeals. Affirmed.

Marsh Arnold and Ralph Wammack, for appellant. J. W. Limbaugh, for respondents.

GOODE, J.

Action for damages for conversion of personal property. The case originated in Scott county, and was sent on change of venue to the circuit court of Stoddard county sitting at Dexter. In 1895 an act of the Legislature was passed providing that two terms each year of the Stoddard circuit court should be held at Dexter, and two terms at Bloomfield, the county seat. At the trial of this cause in the Dexter court, June 10, 1898, plaintiffs obtained a verdict, and defendant at once appealed. That appeal was dismissed February 27, 1900, because the record did not show a judgment had been rendered in the cause. An act of the Legislature was passed and approved April 13, 1899, the effect of which was to abolish the terms of the court at Dexter, and to leave only two terms of the Stoddard circuit court a year, to wit, those held at Bloomfield. The act went into effect August 20, 1899, and hence was in force when the first appeal in the present case was dismissed by this court. After that dismissal, to wit, March 8, 1901, the plaintiffs filed a motion in the circuit court of Stoddard county at Bloomfield for an entry of judgment nunc pro tunc. That motion was taken up at the March term, 1903, and sustained, whereupon the defendant again appealed.

A review of the exceptions taken at the trial of the cause on the merits is claimed by the defendant, and, though it is doubtful if the record warrants such a review, we have attended to the point made for a reversal on the merits, viz., that the evidence was insufficient to support the verdict. Our opinion is against that position. The action was instituted by the plaintiffs Sperling and Schultz to recover the value of a mill which was levied on and sold as the personal property of August Uhde, under a judgment against Uhde obtained by H. W. Beers and others, before a justice of the peace. At the execution sale the defendant Stubblefield purchased the property, but was notified by Sperling prior to the sale that it belonged to him (Sperling) and Schultz. The facts are that in 1896 those parties had entered into a contract with Uhde by which the mill was leased to him for 18 months for a certain rental, with the privilege of purchasing during the term for $800. Uhde did not purchase the mill, but, after operating it a short time, surrendered it to Sperling and Schultz, although he retained the custody of it as their agent. It is on the last fact that the defendant's counsel found a contention that the evidence did not justify the verdict. The argument is that there was no such visible change of ownership as would notify strangers and prevent a purchaser at the execution sale from being deceived into buying the property as Udhe's, the execution defendant. This argument is meritless in view of the fact, confessed by Stubblefield, that Sperling notified him whose...