Sullivan v. Gault
| Decision Date | 06 December 1927 |
| Docket Number | No. 211366.,211366. |
| Citation | 299 S.W. 1116 |
| Parties | SULLIVAN v. GAULT et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.
"Not to be officially published."
Action by Sarchie Sullivan against Gault and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Virginia J. Booth and James Booth, both of Pacific, and F. W. Jenny, of Union, for appellants.
W. L. Cole, of Union, for respondent.
This is an action in trover for the conversion of a Ford automobile. The trial, with a jury, resulted in a verdict and judgment for plaintiff, and defendants appeal.
On November 6, 1926, Mrs. L. A. Bruns, of Gray Summit, Franklin county, Mo., was the owner of the automobile for which this suit is brought, and held a certificate of title thereto, issued by Oscar G. Steininger, commissioner of motor vehicles of the state of Missouri. On that day she sold the automobile to Mrs. Dollie Sullivan, the plaintiff's mother.
The evidence for the plaintiff tends to show that on the same day Mrs. Sullivan sold and delivered the automobile to the plaintiff for the consideration of $250, which plaintiff paid; that thereupon Mrs. Bruns assigned the automobile to plaintiff by indorsement on the back of the certificate of title, and delivered the same to the plaintiff; that afterwards plaintiff delivered the automobile to Harry Kloppenberg's garage in St. Clair, Mo., for repairs.
The evidence for the defendants tends to show that the assignment indorsed on the back of the certificate of title was made to Mrs. Sullivan, and not the plaintiff; that the certificate so indorsed was delivered to Mrs. Sullivan, not to plaintiff; that the assignment was long afterwards altered by erasing the name of Mrs. Sullivan and inserting in lieu thereof the plaintiff's name; and that Mrs. Sullivan, not the plaintiff, delivered the automobile to Kloppenberg's garage for repairs.
While the automobile was in Kloppenberg's garage, it was levied upon and sold to defendant Gault, by defendant Reed as constable of Central township, Franklin county, under an execution issued by James L. Owens, a justice of the peace of said township, on a judgment in favor of said Gault and against Mrs. Dollie Sullivan. Defendant Gault became the purchaser of the automobile at the execution sale, and took possession of the same and appropriated it to his own use.
Defendants assign error here upon the giving of plaintiff's instructions, which, in substance and effect, directed a verdict for plaintiff, if the title to the automobile was transferred by Mrs. Bruns to Mrs. Sullivan, and thereafter Mrs. Sullivan sold the automobile to plaintiff for a valuable consideration, and plaintiff paid same. The plaintiff, in justification of these instructions, insists that the judgment on which the execution was issued was void for want of jurisdiction. The evidence for plaintiff tends to show that the suit in which the judgment was rendered was commenced before Justice Dausmann, and that a change of venue was granted by Justice Dausmann to Justice Owens; that none of the original papers filed in said suit nor a transcript of the docket entries was ever transmitted by Justice Dausmann to Justice Owens; that Justice Owens, without having received such papers or transcript and without setting the case down for trial and notifying the defendant thereof, proceeded, at the instance of defendant Gault, who was plaintiff in said suit, to enter judgment in said suit in favor of said Gault, plaintiff in said suit, and against Mrs. Dollie Sullivan, defendant therein, and thereupon, at the request of said Gault, issued the execution under which the automobile was levied upon and sold. If this evidence discloses the true state of facts, the justice was without jurisdiction to enter the judgment. While it may be true that an order granting a change of venue in a sense confers upon the court to which the change is granted jurisdiction of the cause, the jurisdiction of such court is not complete, and such court is not possessed of the cause, with jurisdiction and power to try and determine the cause, until the transcript and papers have been transmitted and lodged...
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