Stevens v. Springer

• Decision Date: 22 November 1886
• Citation: 23 Mo.App. 375
• Parties: JAMES STEVENS, Respondent, v. DENNIS SPRINGER ET AL., Appellants.
• Court: Kansas Court of Appeals

23 Mo.App. 375

JAMES STEVENS, Respondent, v. DENNIS SPRINGER ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

November 22, 1886

APPEAL from Barton Circuit Court, HON. CHARLES G. BURTON, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action for the conversion of the following personal property:

" One fifteen-ball Brunswick pool table and sixteen pool balls, one Brunswick billiard table and twenty-two cues, and four billiard balls, one ice chest, one bar and counter glassware, fixtures and bottles, and two chandeliers, one hanging lamp, four bracket lamps, one mirror, seven pictures nine chairs, two bar or movable lamps and one clock."

The defendant, Springer, seized the property as that of one Norris under an execution from the Barton circuit court in favor of the defendant, Griswold, against Norris and another. The plaintiff claimed the property as his own absolutely in the manner provided by section 2366, Revised Statutes. Griswold gave to the sheriff, Springer, an indemnifying bond which for the purposes of this case may be said to have been such as required by the statute. The plaintiff as claimant did not make the bond provided by the statute.

The sheriff proceeded to sell the property under the execution as the property of Norris. The sheriff returned the claim and the bond aforesaid to the circuit court, and Griswold, having filed a denial of the claim, the question whether the plaintiff owned the property was, in that court, tried in the manner provided by section 2367, Revised Statutes. The property was found to belong to the plaintiff; judgment was accordingly rendered as provided by the statute and the sheriff was by the judgment directed to release the property to the plaintiff, which the sheriff could not do on account of having already sold and disposed of it.

Upon the question of the value of the property the plaintiff introduced the following evidence:

The plaintiff testified: " All the property I owned in Norris' saloon was worth about one thousand dollars."

Cross-examination: " I got the fifteen-ball pool table from Collin Cockrell, in Cherokee, Kansas; it was second hand at that time; it had been used in a saloon before I got it; do not know how long. Bought a great many articles from Collin Cockrell, a billiard table, some billiard balls and cues, and some other things, but cannot tell what; they were all second hand goods. After I got these things, I bought new pool balls and new cloths and covers for both the pool table and billiard table; also some small numbered pool balls, and some new billiard balls and new pin pool balls. Think I contracted to pay Cockrell four hundred and fifty dollars for the things I got of him. He talked some of going into partnership with me at that time, and the understanding was that if he did not do so, I was to pay him four hundred and fifty dollars. I bought two billiard tables and some glass ware of Mr. House, at Fort Scott, Kansas, and traded these two tables to Cockrell for the things I got of him. The counter, pictures and glass ware I got of House I put into the saloon. Paid House in the neighborhood of six hundred dollars for the things I got of him, but do not remember the exact amount; they were also second hand goods, had been used in the saloon business; don't know how long. The two tables I got of House were worth about one hundred dollars each. * * * A new table like the one levied upon by Springer would be worth, now, about two hundred and seventy-five dollars; and a new pool table would be worth about three hundred and twenty-five dollars."

On behalf of plaintiff, Wandall Crawford, testified as follows:

" I lived in Lamar, March, 1882. I was at Norris' saloon and saw the goods levied upon by Dennis Springer. The property, just as it stood in the building, would have been worth about one thousand dollars. It was sold at place where it stood."

Cross-examination: " I bought the billiard table at the sheriff's sale for sixty-six dollars; the pool table for fifty dollars; the counter for fifteen dollars; lamps for $2.50. William Wells bought most of the glassware. The goods had all been used some. They were secondhand goods. The billiard table, new, would have been worth two hundred and seventy-five dollars; and the pool table, new, would have been worth three hundred and twenty-five. Refitted, they would be worth twenty-five dollars to fifty dollars less than new ones."

Frank Parker, on behalf of plaintiff, testified: " I am acquainted with the goods taken by Dennis Springer from William A. Norris. He took every thing in the saloon except the stove. Have been acquainted with the value of that kind of goods, more or less, for the last four years. Making a rough guess at it, I think these goods ought to be worth one thousand dollars to one thousand and two hundred dollars."

John Jackson, on behalf of plaintiff, testified: " Had some knowledge of the value of saloon property and fixtures, and with the things in Norris' saloon. Could not state what they would be reasonably worth."

William Wells, on behalf of plaintiff, testified: " Have had some acquaintance with the value of saloon fixtures, billiard tables, etc. I saw the articles that were sold by sheriff Springer, in the Norris saloon, on an execution against Norris. I never bought any second hand goods of this kind. It would take one thousand dollars or one thousand and one hundred dollars to fit up a saloon new, with new goods, such as those in Norris' saloon; but do not know what it would cost to fit it up with second hand goods like these. Tables were fitted up nearly as good as new. Counter was in good preservation, but it did not sell at the sale for what it was worth. It brought thirteen or fifteen dollars at the sale, and I afterward bought it from Mr. Crawford for fifty dollars; it was worth about two hundred dollars; probably cost three hundred dollars new; it was a fine one."

Cross-examination: " Do not know how long Collin Cockrell used these things over in Kansas; nor how long Norris used them. Second hand goods generally sell for less than new ones. They would depreciate from one-half to two-thirds in value by being second hand goods."

The court rejected evidence offered by the defendants of the amount for which the sheriff sold the goods.

BULER & TIMMONDS, for the appellants.

I. Under the present statutes, when personal property is seized under execution, and is claimed by any other than the execution creditor and written claim is made, and the execution creditor gives bond, recourse must be had on that bond, and not by suit in trespass against the sheriff. Sect. 2366, Rev. Stat.; Laws Mo. (1877) p. 251; State v. Platt, 52 Mo. 466; Bradley v. Holloway, 28 Mo. 150; State v. Lutzinger, 41 Mo. 498; Dodd v. Thomas, 69 Mo. 364; Steel v. Farber, 37 Mo. 71.

II. The question of ownership was not res adjudicata in this case against defendant, Springer. Henry v. Wood, 77 Mo. 277; 1 Greenl. Evid., sects. 189, 535.

III. Evidence as to the amount the goods actually brought at sheriff's sale is admissible; and the court committed error in rejecting such testimony, and also in giving its second instruction on that point. State v. Jacob, 2 Mo.App. 183; Truitt v. Baird, 12 Kan. 420; Paine v. Boston, 4 Allen (Mass.) 168; Harrison v. Glover, 72 N.Y. 451; 2 Greenl. Evid., sect. 640.

IV. The instructions given for plaintiff were erroneous. Those asked by defendant should have been given.

THURMAN & WRAY, for the respondent.

I. All statutory remedies are cumulative unless in terms, they repeal the existing common law remedies, and statutes in derogation of the common law are to be construed strictly. Railroad v. Hecht, 5 Otto (U. S.) 168; Malcom v. Rogers, 5 Cowen (N. Y.) 188; 24 Ill. 105; 89 Ill. 571; 35 Am. Rep. 182; 125 Mass. 190; State v. Clinton, 57 Mo. 390; Schell v. Leland, 45 Mo. 289.

II. Section 2366, Revised Statutes, provides a summary remedy for the trial of the rights of property between the claimant, the sheriff and the execution creditor, and does not repeal the common law remedies of trespass, trover or replevin. Belkin v. Hill, 53 Mo. 492; State ex rel. Martin v. McBride, 81 Mo. 349; Roberts v. Heirn, 27 Ala. 676; Elliott v. Heyden, 104 Mass. 180; Knight v. Nelson, 117 Mass. 459.

III. The measure of damage in trespass where the taking is by an officer and without malice, as in this case, is the market value of the property at the time and place of taking with legal interest thereon from the time of the taking. Sedgwick on Meas. Damages, 530; State ex rel. v. Smith, 31 Mo. 566; Gilson v. Wood, 20 Ill. 37; Brown v. Allen, 35 Iowa 306; Dalton v. Louderdale, 27 Mich. 529. The price realized at a forced sale by a wrong-doer can never be sanctioned as a proper criterion for ascertaining the actual value of goods. Campbell v. Woodworth, 26 Barb. (N. Y.) 648; Morton v. Scull, 23 Ark. 289; Haner v. Hathaway, 33 Cal. 117; McLean v. Birdsong, 24 Georgia 265; Ellis v. Wise, 33 Ind. 127; Spencer v. Vance, 57 Mo. 428; Seibel v. Siemon, 72 Mo. 531.

IV. A trial under the statute, is res adjudicata as to the ownership of the property between the execution creditor and sheriff, on the one hand, and the claimant on the other. Wells on Res Adjudicata, sects. 16-67; Wood v. Easel, 63 Mo. 193; Harvie v. Turner, 46 Mo. 444; Roberts v. Heirn, 27 Ala. 676; Emery v. Fowler, 39 Me. 331.

V. The bond taken by the sheriff in this case, containing no condition to indemnify the claimant, as required by section 2366, Revised Statutes, would be no bar to a suit in trespass under the acts of 1855. Dairy Co. v. Sauer, 16 Mo.App. 1.

HALL J.

The court held that the plaintiff was not precluded from bringing this action because he made claim to the...