Spickard v. Continental Cas. Co.
| Decision Date | 06 November 1933 |
| Citation | 64 S.W.2d 734,228 Mo.App. 233 |
| Parties | ED SPICKARD, SHERIFF, RESPONDENT, v. CONTINENTAL CASUALTY CO., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Grundy County.--Hon. A. G. Knight Judge.
AFFIRMED.
Judgment affirmed.
H. K West and L. A. Warden for respondent.
Rex H Moore and Platt Hubbell for appellant.
Harry Tidd, on October 16, 1931, brought suit in the Circuit Court of Grundy County against Kelley Fisher to recover an alleged debt in the sum of $ 950. The suit was aided by attachment. Writ of attachment was issued and placed in the hands of Ed Spickard, sheriff, for service. The sheriff indorsed return on the writ, stating that by virtue thereof he took into his possession and under his control certain specifically described personal property. Thereafter, in November, judgment was rendered in the cause sustaining the attachment and awarding plaintiff the sum of $ 850 "as per decree filed." The judgment was later set aside by order of the court and this latter order was also thereafter set aside by agreement of the parties and a formal judgment entered sustaining the attachment and awarding recovery in favor of plaintiff in the sum of $ 850.
In November, 1931, the Cleveland Tractor Company brought suit against Ed Spickard as sheriff of Grundy county and another in replevin to obtain possession of the property described in the sheriff's return in the attachment writ. The petition in replevin and the affidavit are in due form. At the time of the institution of the replevin suit the plaintiff therein as principal and the Continental Casualty Company, defendant herein, as surety, executed a replevin bond in the penal sum of $ 2000, conditioned as provided in Section 1626, Revised Statutes 1929. An elisor was duly appointed to execute the writ of replevin. No return was indorsed on the writ or filed in the cause. In March, 1932, minute entry was made in the cause in which it is recited that evidence was heard and finding and judgment "is for the defendant as per judgment filed." In November, 1932, there was written upon the records in said cause a formal judgment in which it is recited that the parties to the action appeared, answered ready for trial, waived jury, and that the court after being fully advised found that the property described in plaintiff's petition at the time of the commencement of the suit, was in the possession of the said sheriff of Grundy county; that the plaintiff was not entitled to recover the property; that the sheriff's codefendant was not in possession of the property at the time of the commencement of the suit, and adjudged that the defendant Spickard have judgment therein.
The instant suit is upon the bond in replevin to recover the amount of the judgment in the case of Tidd v. Fisher and for the expense incurred by plaintiff in caring for the property seized under the writ of attachment. The cause was tried to the court, jury waived, plaintiff had judgment as prayed. The defendant has appealed.
At the close of the evidence the defendant requested the court to declare that plaintiff "as a matter of law" was not entitled to recover. The request was refused. No other declarations of law were asked or given. Therefore, if there was any substantial evidence authorizing the judgment it will be sustained on appeal. [State ex rel. v. Staed, 143 Mo. 248, 45 S.W. 50.]
The defendant contends that it was not liable upon the replevin bond for the following reasons: (1) That the sheriff did not levy upon or take into his possession any property under the writ of attachment; (2) that the writ of replevin was not executed and, (3), that there was no judgment for the return of the property to the sheriff.
The return upon the writ of attachment states facts showing that the property involved in the replevin suit was seized by the sheriff in virtue of the writ. The petition in the replevin action alleges that the defendant sheriff "under a writ of attachment in the case of Harry Tidd v. Kelley C. Fisher has attached and is holding" the property described in the return of the writ of attachment. The bond in replevin was executed by Cleveland Tractor Company as principal and Continental Casualty Company as surety. The recitals therein in legal effect say that the property was in the possession of Sheriff Spickard.
Plaintiff Spickard testified that he seized the property under the writ of attachment and left it with Mr. Hatfield who was...
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