State v. Conran

• Decision Date: 03 June 1919
• Docket Number: No. 20170.,20170.
• Citation: 212 S.W. 869
• Parties: STATE ex rel. and to Use of FENN v. CORAN et al.
• Court: Missouri Supreme Court

212 S.W. 869

STATE ex rel. and to Use of FENN v. CORAN et al.

No. 20170.

Supreme Court of Missouri, Division No. 1.

June 3, 1919.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Action by the State of Missouri, at the relation and to the use of Bert F. Fenn, against M. J. Conran and J. K. Robbins, administrators of the estate of James V. Conran, deceased, and the United States Fidelity & Guaranty Company, a corporation. From judgment for relator for less relief than demanded, he appeals. Affirmed.

H. A. & C. R. Hamilton and Bert F. Fenn, all of St. Louis, for appellant.

John M. Wood, of St. Louis, and Oliver & Oliver, of Cape Girardeau, for respondent United States Fidelity & Guaranty Co.

Gallivan & Finch, of New Madrid, for Conran estate.

GRAVES, J.

This is an action upon an attachment bond. Cause was tried before a referee, to whose report the relator filed exceptions, a part of which were sustained. The bond was for $20,000, and relator asked damages in a sum over $17,000. The referee recommended judgment in the sum of $5,016.25, but, after sustaining certain of relator's exceptions, and modifying the report accordingly, the court gave relator judgment for $7,226.68. Not satisfied with this sum, the relator has appealed.

Facts and pleadings may well be outlined together. In May, 1906, James V. Conran commenced an action by attachment against Bert F. Fenn in the circuit court of New Madrid county. The bond in this suit is the attachment bond in that case. Defendant appeared and filed an application for a change of venue, and the venue was changed to St. Genevieve county. Plea in abatement was filed, and in January term, 1907, of that court a trial was had on the plea in abatement, and verdict and judgment was entered for the plaintiff in said matter sustaining the attachment. Later, but at the same term of the court, a trial was had on the merits of the case, and the plaintiff secured a verdict and judgment for $5,000. The action was for slander. The judgment was a general judgment.

From the two judgments the defendant in that action appealed, but gave no appeal bond, and by reason of this failure come several questions in the case now before us. The appeal finally reached the St. Louis Court of Appeals, and both judgments were reversed by that court. Conran v. Fenn, 159 Mo. App. 664, 140 S. W. 82. The reversal in that court was in September 1911. Before a retrial the plaintiff (Conran) in the slander suit died, and of course his cause of action abated. The result was that the attachment was dissolved without further trial.

The two parties (Conran and Fenn) seem to have been active in lawsuits. While Conran was suing and attaching Fenn in the country, Fenn brought a number of suits against Conran in the city of St. Louis. In some three or four he procured judgments, and herein more trouble in the instant case.

Whilst the slander suit of Conran v. Fenn was pending upon appeal, there being no appeal bond given, Conran caused execution to be issued and some property of Fenn to be sold and some money in a partition suit to be held and applied on the judgment. This occasions a contention here.

Furthermore, during the pendency of the appeal, Fenn obtained some three or four judgments in the city of St. Louis, and Conran used his judgment in the slander suit to satisfy or partially satisfy these judgments. These likewise occasion contentions in the instant case.

The latitude of the pleadings covered all these matters, and we have combined both brief outlines of pleadings and facts. More details can be best left to the discussion of the points urged in the course of the opinion.

I. There are but three assignments of error made by appellants, and of these in order.

In the slander suit the court (the defendant having personally appeared) entered a general judgment. No appeal bond having been given by Penn, the plaintiff caused a general execution to issue upon this judgment pending the appeal and sold under that execution some real estate of Penn for $2,241, the net proceeds of which was credited upon the judgment. This sum relator says that he should be permitted to recover.

The referee found that relator could not recover upon this item because there was no evidence before him from which he could determine his damages. The court, however, took the position that there was no liability upon the attachment bond for these alleged damages. If this be true, there is no reason to discuss the reason assigned by the referee.

In this attachment suit the defendant, Fenn, was personally served, and appeared. He appeared first by applying for a change of venue. Winningham v. Trueblood, 149 Mo. loc. cit. 582, 51 S. W. 399. By statute (section 2333, R. S. 1909) the court was allowed to enter a general judgment upon the trial of the merits. In fact, we have held it error to enter a special judgment against the attached property, and error not to enter a general judgment when defendant appears. Maupin v. Mining Co., 78 Mo. loc. cit. 27; Borum v. Reed, 73 Mo. loc. cit. 464; Jones v. Hart, 60 Mo. 351; Kritzer v. Smith, 21 Mo. 296; Anderson v. Hull, 45 Mo. App. loc. cit. 205.

The sale was not had by reason of any judgment or order in the attachment branch of the case. It was had under a general execution, issued upon a general judgment. Now, whilst as between creditors and their claims to priority of liens we hold that an attachment lien is merged into...