Weaver v. Lake

• Decision Date: 20 January 1928
• Docket Number: No. 4363.,4363.
• Citation: 4 S.W.2d 834
• Parties: WEAVER et al. v. LAKE et al.
• Court: Missouri Court of Appeals

4 S.W.2d 834

WEAVER et al. v. LAKE et al.

No. 4363.

Springfield Court of Appeals. Missouri.

January 20, 1928.

Rehearing Denied April 7, 1928.

Appeal from Circuit Court, Newton County; Chas. L. Henson, Judge.

Action by W. T. Weaver and others against C. B. Lake and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Leo H. Johnson, of Neosho, for appellants.

Horace Ruark and L. D. Rice, both of Neosho, for respondents.

BAILEY, J.

Plaintiffs sued in replevin to recover possession of a certain automobile. In the petition it is alleged that plaintiffs are entitled to the possession of the car, therein described, and it is further alleged that—

"Their ownership was a special ownership, in that the defendants for a consideration of $1,217.29 duly paid to said defendants by said plaintiffs, sold said automobile to the plaintiffs on or about the 30th day of September, 1926, and delivered the same to them at such time, said car constituting a part payment for said amount upon the purchase price of certain real and personal property sold them and then conveyed and delivered to defendants by plaintiffs at and for the total consideration of $3,500.

"That it was understood and agreed that the certificate of title issued by the state of Missouri in the name of D. M. Lake would be assigned by the said D. M. Lake and delivered to plaintiffs the following day. That although demand has frequently been made upon said defendants for such certificate of title assigned, free and clear of all incumbrances of every kind and nature against said automobile, they have constantly failed and refused to assign and deliver such certificate of title.

"Plaintiffs state that they are seized with and are the owners of a special interest in said automobile to the extent of the consideration paid therefor, viz., $1,217.29, and until they are reimbursed therefor they are lawfully entitled to retain possession thereof. That they have constantly offered and been willing to surrender possession of said car to said defendants on payment of said consideration and do now offer and tender the car to defendants on payment of said sum of $1,217.29 which represents the special interest of plaintiffs in and to said automobile or in lieu thereof accept assignment of certificate of title therefor.

"That on said ____ day of October, 1926, the defendants wrongfully took said property, to wit, said Willys-Knight automobile, alleged by plaintiffs to be of the value of $1,217.29, from the possession of plaintiffs, and still unjustly detain the same at the county aforesaid to plaintiff's damage in the sum of $1,217.29.

"Wherefore plaintiffs demand judgment against said defendants for the recovery of the possession of said automobile, etc."

The statutory form of affidavit in replevin was filed by plaintiffs. Defendants' demurrer to the petition was sustained, and, plaintiffs refusing to plead further, judgment went for defendants. Plaintiffs have appealed from this judgment.

The brief filed by plaintiffs in this case fails to comply with the provisions of rule 18 of this court, in that it contains no assignment of errors. This rule should be observed. However, we have not been inclined to hold litigants to the strict letter of this rule where, as in this case, at least some of the points relied on for reversal may be fairly ascertained from the briefs.

It is first urged that the judgment is erroneous on the theory that courts will not enforce illegal contracts, but leaves the parties in the position where they place themselves; that since the sale of the automobile without the transfer of the certificate of title is admittedly void under our statute, and since plaintiffs had possession of the automobile in question, defendants were in no position to lawfully recover possession of the property, and their taking possession of the property without process of law gave them no right thereto, and the parties should be left as they were prior to the wrongful taking. While all the facts above set forth are pleaded in the petition, the theory advanced by plaintiff cannot be upheld. In the first place we believe the trial court, by sustaining a demurrer to plaintiffs' petition, did just what plaintiffs say should have been done, i. e., left the parties in the same position they had placed themselves....