St. Louis Union Trust Co. v. Merritt
| Decision Date | 30 June 1911 |
| Parties | ST. LOUIS UNION TRUST CO., Appellant, v. T. J. MERRITT et al., Respondents |
| Court | Missouri Court of Appeals |
Argued and Submitted June 8, 1911
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
Judgment affirmed.
Ely Kelso & Miller for appellant.
(1) This cause was certified and all papers transmitted by the justice to the circuit court of Pemiscot county upon the affidavit of respondent that the title to real estate was involved in the suit, and under the statutes this cause, when so certified to the circuit court, was then controlled by the statute regulating the practice in circuit courts. R. S 1909; secs. 7460, 7778; McLain v. Berkebile, 123 Mo.App. 647. (2) If we supply this reasoning and the principles laid down in all of the cases dealing with replevin suits to the case at bar, we fail to see any reason or any excuse for the judgment entered in this case, for it certainly would be inequitable to allow the defendants respondents in this case, to agree and give directions as to the disposition of the property in controversy, receive the proceeds arising from the sale of the timber in controversy, retain what they have received from the property, and then have judgment for the return of the whole of the property which they, the respondents, have agreed should be sold, and had received the moneys arising from said sale. The statute is certainly intended to make a complete and satisfactory judgment of all the rights of the parties in the action, which has certainly not been done in this case. R. S. 1909; secs. 7778, 7779; Boutell v. Warne, 62 Mo. 350; Cartmell Mach. Co. v. Sikes, 83 Mo.App. 565. (3) When the case was transmitted to the circuit court, if respondents desired to claim the property, it was incumbent upon them to file an answer setting up a claim to the property and demanding the return thereof, for the court has held that in an action of replevin in the justice court where the defendant failed to file an answer he was not entitled to affirmative relief, and the issue to be tried was the wrongful detention of the property of the defendant and a lien upon the replevined cattle for damage feasant would show a rightful detention and defeat the plaintiff's action and a general verdict would be sufficient, but would only carry the costs. McLain v. Berkebile, 123 Mo.App. 647.
Ward & Collins for respondents.
(1) We put plaintiff's title in issue in this case by filing in the justice of the peace court the pleading and affidavit required by section 7460, R. S. 1909; and at no time did the appellant object to the sufficiency of that pleading; and at no time during the trial court made any suggestion or pretense of the insufficiency of our pleading, but undertook to prove his title and make out a case and failed. The appellant nowhere showed that he ever was in possession of the timber in controversy or of the land on which it grew besides what is said before, "the defendant's appearance in replevin in the justice court puts in issue the plaintiff's title and requires plaintiff to show his title to the property involved." Stone v. McNeely, 59 Mo.App. 396; Scott v. Riley, 49 Mo.App. 251; Gartside v. Nixon, 43 Mo. 138; Gray v. Parker, 38 Mo. 160. (2) Plaintiff made no objection to this finding of the court and this judgment in its motion for a new trial, and if there is any defect, plaintiff waived it. Because the error complained of was not raised in the motion for a new trial, it cannot be considered on an appeal. Taylor v. Brotherhood, 106 Mo.App. 212; Scudder v. Payton, 65 Mo.App. 314; Piano Co. v. Gibbons, 96 Mo.App. 218. This is an attack upon a judgment that cannot be made here, because not brought to the attention of the trial court by a motion in arrest. Hurt v. Hahn, 61 Mo. 496. (3) Under the statute this was the only judgment that could be rendered; plaintiff had no title; it was put out on demurrer; it had failed to show the value of the stuff replevined; no agreement that the defendant should accept the value of the property brought; no agreement showing that a judgment should be rendered for the amount of the money turned over by J. T. Warren to plaintiff. The law requires the judgment to be the return of the property replevined or the value therein at the discretion of the defendant; no value was shown of the timber; therefore, the judgment must be for the return of the property.
Plaintiff commenced this action before a justice of the peace of the proper township of Pemiscot county, to recover possession of 30,000 feet of saw logs, plaintiff filing a bond with sureties, as provided by law. The logs were taken out of the possession of defendants by the constable and delivered over to plaintiff. On the return day of the summons, defendants appeared and filed their affidavit under oath, to the effect that the logs replevied were cut off of a certain fractional quarter of land in the township, and "that the title to real estate is involved in this cause of action and the possession and ownership of said timber." Whereupon the justice certified the case into the circuit court of Pemiscot county, as provided by section 7460, Revised Statutes 1909. The case being called for trial in the circuit court on its being certified to that court, on trial before the court, a jury being waived, there was evidence tending to show that at and about the time of the transfer of the cause to the circuit court, and on the day the above affidavit was filed, an arrangement had been entered into between the parties to the suit for the handling of these logs and timber that had been replevied, under which the timber in controversy was to be turned over to one Warren, with the understanding that it should be shipped to and sold by Warren, "and that after Warren got the money for it he was to pay defendant Merritt the expense of cutting and hauling the timber, and the balance of the money should be sent to the Trust Company, appellant herein, to be held by it until the determination of this suit, and pay to the party found to be entitled to the stumpage all the balance of the money remaining in the hands of said J. T. Warren or appellant." It further appeared in evidence that "under this agreement Warren took the timber in controversy, paid Merritt all the money received therefor, except $ 123.15, and all the money arising from the sale of the timber was paid out under an agreement by all the parties." We take the above matter in quotation marks from the statement of counsel for appellant. It is proper to say that defendants, by testimony brought out by them in cross-examination of Mr. Warren, claim that the timber coming off of the particular fractional quarter section occupied by Mrs. Campbell was not covered by this agreement and that the agreement did not release or affect her claim to that timber, or fix its value. There was also evidence tending to show that Mrs. Campbell, one of the defendants, resided on the northeast fractional quarter of section 26, township 20, range 11 east, in Pemiscot county; that the timber in controversy was cut on this fractional quarter and did not come off of lot No. 1 in that quarter, which was the land claimed by appellant; that the timber had been cut by defendant Merritt under an arrangement between him and Mrs. Campbell. Plaintiff also offered in evidence a certified copy of the record of a patent from Pemiscot county to plaintiff, conveying lot No. 1 of this northeast quarter. It was claimed and in evidence that lot No. 1 and the fractional quarter which Mrs. Campbell claimed, were not the same tracts. It was also in evidence that Mrs. Campbell had been living on this fractional quarter for 15 years, attending and cultivating it, clearing part and getting firewood and timber on the other part, and that prior to her living there the parties under whom she claimed had done these same acts for a number of years. It was also in evidence that by the agreement above referred to, which appears to have been merely verbal and not in writing, it was stipulated that the parties would litigate the right to the timber in the courts, that, as we understand, referring to this present action.
At the close of this testimony on behalf of plaintiff, defendants interposed a demurrer, ore tenus, which the court sustained. Plaintiff thereupon asked leave to offer a deposition of the defendant Mrs. Campbell which the court refused to allow. That deposition was on file in the case and had been taken by defendants. It is in the abstract. In that deposition Mrs. Campbell testified that the timber in controversy was hers; that it came off of land she was in possession of as a homestead and as doweress of her husband; that the particular piece of land off of which the timber came is a part of a farm on which she now lives and on which she had lived ever since her husband's death. She and her husband had moved on to it in 1885 and were living on it when he died, eight years prior to her deposition. They had a deed to the land and went into possession, claiming it as their own under the deed and had lived on it, claiming to own it ever since 1885. Her husband had bought it from one Rowe, who had bought it from one Walker, who had homesteaded it under the United States land laws. The claim all lies in one body and is all included in one deed.
After sustaining the demurrer and declining to allow plaintiff to introduce this deposition in evidence, the court entered up judgment as follows ...
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