State v. O'Neil Lumber Co.

• Decision Date: 27 October 1902
• Citation: 170 Mo. 7,70 S.W. 121
• Court: Missouri Supreme Court
• Parties: STATE, to Use of RAMMING, v. O'NEIL LUMBER CO. et al.

70 S.W. 121

170 Mo. 7

STATE, to Use of RAMMING, v. O'NEIL LUMBER CO. et al.

Supreme Court of Missouri, Division No. 2.

October 27, 1902.

SHERIFF'S INDEMNITY BONDS — STATUTES — CONSTITUTIONALITY — REPEAL — RES JUDICATA.

1. The sheriff's and marshal's act (Laws 1855, p. 464), first made applicable to St. Louis county only, authorizing a sheriff directed to levy an execution on personal property, claimed by a third person, to demand an indemnity bond, payable to the state, conditioned for the payment of damages sustained by the claimant in consequence of the levy, and made applicable to the city of St. Louis, only, by Laws 1858-59, p. 440, § 6, does not violate Const. 1875, art. 4, § 53, prohibiting the general assembly from passing any local or special law regulating the practice or jurisdiction of, or changing the rules of evidence in, any judicial proceeding before courts, justices of the peace, sheriffs, etc.; and therefore a bond executed pursuant to such act is not void.

2. The act being in force at the time of the adoption of the constitution, and not being inconsistent therewith, is continued in force by Const. Sched. § 1 (1 Rev. St. 1889, p. 110), providing that laws in force at the adoption of the constitution shall continue in force until altered or repealed.

3. The act is not impliedly repealed by Rev. St. 1889, § 572, providing that a person claiming property attached may interplead in the cause, the provision for the execution of the bond being for the protection of the sheriff.

4. The matters adjudged on appeal of a cause by the court of appeals are res judicata on a second appeal.

Appeal from St. Louis circuit court; Jas. E. Withrow, Judge.

Action by the state, to the use of John Ramming, against the O'Neil Lumber Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Lubke & Muench and W. Frank Carter, for appellants. Jas. P. Maginn, for respondent.

BURGESS, J.

The facts, as stated by defendants, are as follows: This cause was before the court of appeals on a former appeal, reported in 77 Mo. App. 538. On that appeal relator was the appellant, assigning as error the action of the trial court in sustaining a demurrer to the testimony. On the second trial — the one from which this appeal is taken — there was a verdict for relator in the sum of $886.24, from which defendants have appealed. The action is upon a bond executed by defendants to the sheriff of the city of St. Louis to protect him against any damages he might have sustained by reason of a levy upon and sale of certain property claimed by relator, and was given in consequence of the "sheriff's and marshal's act," approved March 3, 1855. The sheriff of the city of St. Louis, under a special execution in favor of the O'Neil Lumber Company, returnable to the June term, 1897, in the St. Louis circuit court, had levied upon, among other things, as the property of the execution debtor, Shooting the Chutes Company, two boilers, flywheel, two heaters, one steam pump, and certain other accessories, which relator claimed as his property, and by reason of which claim the sheriff required defendants to execute the bond sued on. Subsequently, and on June 5, 1897, the sheriff sold this property, with other property, to one John S. Griffin, to satisfy said execution, and said Griffin took possession of the property. Relator now sues for the value of the property claimed by him. The answer of the defendants set up, first, that this property was, long before the levy of the execution, by and with the consent and co-operation of respondents, incorporated into and made part of all the improvements and erections known as "Shooting the Chutes," and in connection with said erections and improvements the said O'Neil Lumber Company and other contractors and subcontractors in common with the respondent had contributed and furnished material, fixtures, engines, boilers, and machinery, and performed labor in connection therewith, for all of which each of said parties were entitled to perfect a mechanic's lien upon all such erections and improvements for the price or value thereof if not paid; that upon failure of said Shooting the Chutes Company to pay the said O'Neil Lumber Company and certain other parties for furnishing material and labor in and upon said erections and improvements, the O'Neil Lumber Company and such other parties had duly perfected their lien for the amount and value of the material and labor so furnished, and had thereafter duly obtained judgment in the proper courts for the amount of their respective claims, and that the O'Neil Lumber Company sued out a special execution under its judgment. The answer further alleged that prior to the levy of the execution in favor of the O'Neil Lumber Company the plaintiff had, on, to wit, the 20th day of March, 1897, filed his lien for the identical property mentioned in said bond; that upon the faith of such conduct by relator in filing his said lien the O'Neil Lumber Company had secured its...