State ex rel. Athletic Tea Company v. Cameron

• Decision Date: 05 May 1925
• Citation: 273 S.W. 746,216 Mo.App. 683
• Parties: STATE OF MISSOURI ex rel. ATHLETIC TEA COMPANY, Appellant, v. HENRY CAMERON, JOHN T. HOLME, W. B. PETTIBONE and J. P. HINTON, Respondents.
• Court: Missouri Court of Appeals

273 S.W. 746

216 Mo.App. 683

STATE OF MISSOURI ex rel. ATHLETIC TEA COMPANY, Appellant, v. HENRY CAMERON, JOHN T. HOLME, W. B. PETTIBONE and J. P. HINTON, Respondents.

Court of Appeals of Missouri, St. Louis

May 5, 1925

Appeal from the Circuit Court of Marion County.--Hon. Chas. T. Hays Judge.

AFFIRMED.

Judgment affirmed.

Wm. T Myers and John V. Lee for appellant.

(1) It was error to sustain the oral motion to elect.Wamsganz v. Blanke-Wenneker Candy Co.,216 S.W. 1025(Mo. App.) and cases there cited.(2) The judgment for defendants is against the evidence, and without any evidence for its support, and the motion for new trial should have been sustained.Perkins v. Cox,242 S.W. 974;Roberts v. Quincy R. Co.,56 Mo.App. 60;Foley v. Alkire,52 Mo. 317;Moore v. Mo. Pac. R. Co.,28 Mo.App. 622;Curtiss v. Driggs,25 Mo.App. 175;Etlinger v. Kahn,134 Mo. 492.(3) The verdict is the result of passion and prejudice, being clearly wrong and manifestly against the weight of the evidence.Coats v. Lynch,152 Mo. 161;Christopher v. Architectural Iron Co.,85 Mo.App. 640;Snyder v. Wabash R. Co.,85 Mo.App. 495.(4) Without doubt, a Sheriff, Marshal or other officer who takes property by virtue of legal process is under some obligation to see to the protection of such property against injury and loss.Silver v. McNeil,52 Mo. 518;State ex rel. v. Edmondson,71 Mo.App. 172;State ex rel. v. Lindsay,73 Mo.App. 473;Leise v. Mitchell,53 Mo.App. 563;Gilbert v. Peck,43 Mo.App. 577.(5) A void judgment and execution furnishes no protection to the officer.Ray v. Dodd,132 Mo.App. 448;Howell v. Caryl,50 Mo.App. 440.(6) It was error to give instructions C and D for defendants.(7)Defendants made no proof that the judgment of the justice was valid, as pleaded affirmatively.State ex rel. Lichter v. Miller, 48 Mo. 251.

Lewis O'Connor and Rendlen & White for respondents.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.--

This is an action against the respondent Cameron, Constable of Mason township, Marion county, Missouri, and the sureties upon his official bond.The cause was tried to the court and jury, resulting in a verdict and judgment for defendants, from which plaintiff has appealed

It appears that a judgment was rendered in the justice's court in favor of one Courtney against relator the Athletic Tea Company, the appellant in this cause.Execution was issued upon said judgment and the constable levied upon certain properties of the Tea company, which properties consisted of coffee, tea, spices, etc., which the Tea company kept stored in a livery barn in the city of Hannibal.The levy was made by locking and nailing up the door to the room in the barn where the property was then stored.Thereafter the Hannibal Court of Common Pleas, in a certiorari proceeding, set aside the judgment of the justice and the property was restored by the constable to the Tea company.The property was levied upon in June, 1921, and was released in October, 1921.

The first count of the petition proceeded upon the theory that the execution under which the constable made the levy was void upon its face, and that the constable therefore held said goods without any authority and that the action of the constable upon said void execution was a trespass against the rights of plaintiff and to plaintiff's damage.

The second count alleged that the proceedings were regular and the execution valid, but that the constable acted oppressively by taking goods of the value of $ 1,000 to satisfy a judgment and costs of $ 53.27; that the goods so levied upon were of a perishable nature and that it therefore was the duty of the constable to give immediate notice of execution and sale and to return the execution within thirty days; that he failed to do so, and retained the goods for about four months; that he failed to preserve same to prevent them from deteriorating while in his control; that after the judgment of the justice had been declared null and void in the certiorari proceeding in the Common Pleas Court, the constable turned back only a part of the goods so levied upon, and that a large portion of said goods had deteriorated by reason of a lack of care thereof.The total damage alleged in the second count is $ 979.99.

The respondents demurred to the petition on the ground that the counts were inconsistent.The court overruled this demurrer, whereupon respondents answered that the justice had full and complete jurisdiction of the subject-matter, and that the execution was duly and regularly issued and was regular and valid on its face.The answer further alleges that the constable under said execution levied upon one hundred and fifty packages of tea and coffee, together with certain other articles of similar character, and that the constable exercised his best judgment in good faith in making said levy; that he took into possession under the execution only such property as he deemed necessary to satisfy the judgment and costs.It is then alleged that on or about June 18, 1921, when appellant filed its petition by certiorari to have the judgment of the justice set aside, the respondent constable entered into an agreement with the attorney and agent for the relator Tea company that the property should remain in the room where the constable had locked up same, and that all matters should remain in statu quo until the final determination of such certiorari proceedings in the Common Pleas Court, and that immediately upon the determination of the certiorari proceedings the constable turned back and delivered to the Tea company all the property levied upon in pursuance of such understanding between the constable and the Tea company's agent, and that the appellant therefore is estopped from claiming any damage done to said merchandise while same was in the possession of respondent Cameron as constable.The answer further denies that the property held under the execution was damaged or in anywise injured while in the possession of the constable, but that all such property was returned in good merchantable condition.

The cause proceeded, and at the close of plaintiff's case the defendant again orally moved the court to require an election by relator on which count it would stand.The court sustained such motion to elect, whereupon appellant elected to proceed upon the second count, which was the cause of action on the theory that the execution was void as above set out.The proof of the defendants was to the effect that the constable levied upon only such amount of goods as he thought was enough to pay the judgment, costs and expenses.The constable himself testified in this regard, as follows: "I levied upon what I though was enough to pay the $ 50 and expenses.It did not look like to me there was more than $ 40 or $ 50 worth of goods in the building.I knew nothing about the value of the tea, coffee or dishes."The constable further testified that he securely locked the place where the goods were stored and kept same at said place until the certiorari proceedings were determined; that immediately upon the certiorari proceedings being filed, he met the attorney and agent for the relator, the Tea company, and that it was agreed between said attorney and the constable that nothing should be done in regard to the execution or proceedings and that the property should remain just as it was then stored until the court of record passed upon the matter under such certiorari proceedings, and that he kept such property in such condition until it was released again to the Tea company.

There is a sharp conflict in the evidence between the parties as to the value of the commodities kept in the storeroom under the execution, and the constable's testimony, as brought into the evidence by deposition, is by no means as convincing as his testimony given at the trial.This is also true with reference to the testimony of the constable with reference to the agreement...