Vaughan v. Tyler
| Decision Date | 29 November 1920 |
| Citation | 226 S.W. 1034,206 Mo.App. 1 |
| Parties | W. M. VAUGHAN, Appellant v. L. B. TYLER, Defendant, THE CITIZENS BANK OF ELDON, MO. Garnishee, Respondent, |
| Court | Kansas Court of Appeals |
Appeal from Miller County Circuit Court.--Hon. John G. Slate, Judge.
REVERSED AND REMANDED (with directions.)
Judgment reversed and cause remanded.
H. L Donnelly and W. S. Stillwell for appellant.
Sid C Roach and R. F. White, for respondent.
This is a garnishment proceeding in aid of an attachment suit wherein plaintiff Vaughan, at the December, 1919, term of the Miller County Circuit Court, obtained judgment against the defendant, Tyler for $ 102.50, after the attachment was sustained.
Defendant Tyler was a merchant in the town of Eldon owning a stock of groceries, goods, wares and merchandise, and on March 28 1919, he executed to the Citizens Bank of Eldon, Missouri, a chattel mortgage on said stock and the furniture, fixtures and equipment of the store, to secure a note for $ 3750, due one year after date with seven per cent interest. The chattel mortgage provided that the mortgaged property should remain in the possession of the mortgagor until default be made in the payment of the debt or some part thereof. Tyler remained in possession and continued to run the store while the Bank retained the mortgage, withholding it from record, until the 20th of October, 1919, when it had the same recorded and then on the 21st of October, 1919, took possession of said store through a replevin suit in foreclosure of said chattel mortgage. The property so-taken possession of was of the value of $ 3100. Thereupon plaintiff Vaughan brought his said attachment suit and summoned the bank as garnishee, the entire matters being returnable to the said December, 1919, term.
The garnishee Bank filed its answer to the plaintiff's interrogatories wherein it denied having any property of defendant in its possession or that it owed defendant anything. It admitted, however, having had in its possession the property aforesaid, alleging that it took the same from the possession of the defendant under said replevin writ in foreclosure of said chattel mortgage.
Plaintiff's denial, which is the first formal pleading in the formation of the issues to be tried in garnishment proceedings, set up that the chattel mortgage under which garnishee took possession of said property on October 21, 1919, was fraudulent and void as to plaintiff and all other creditors of defendant; that garnishee failed to demand of and receive from the defendant a written statement of the names and addresses of all creditors of the defendant with the amount of the indebtedness due each, and failed to notify said creditors, as required bye section 1 of the Act of March 25, 1913. [Laws 1913, p. 163.]
Garnishee filed no reply to plaintiff's denial, but the garnishment proceedings were tried before the court sitting as a jury, as if the issues had been made up. It was conceded that the defendant, Tyler, from the date of the execution of the chattel mortgage aforesaid until the date of the taking possession by the bank aforesaid, was in possession of and conducting said business as a retail business and in the usual course of trade. It was further conceded that the garnishee did not in any way comply with the aforesaid law in reference to the sale or disposition in bulk of stocks of merchandise; also that the plaintiff was served with the writ of garnishment within ninety days after defendant delivered possession of the property to the garnishee. The court found that the mortgage was taken by the garnishee in good faith to secure the payment of a valid and subsisting indebtedness long prior to the making of the account on which plaintiff based his action; that...
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