Weidman v. Byrne

• Decision Date: 16 December 1920
• Docket Number: No. 2597.,2597.
• Citation: 226 S.W. 280,207 Mo. App. 500
• Parties: WEIDEAN v. BYRNE et al.
• Court: Missouri Court of Appeals

226 S.W. 280

207 Mo. App. 500

WEIDEAN v. BYRNE et al.

No. 2597.

Springfield Court of Appeals. Missouri.

December 16, 1920.

Rehearing Denied January 1, 1921.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Suit by E. M. Weidman against E. G. Byrne and others. Judgment for defendants, and plaintiff appeals. Affirmed.

George V. Farris, of Webb City, for appellant.

George J. Grayston and J. B. Steiner, both of Joplin, for respondents.

BRADLEY, J.

This is a suit in conversion. Plaintiff alleges that he was the owner and entitled to the possession of an air compressor and some other personal property of the value' of $1,000, and that the defendants wrongfully converted said property to their own use to plaintiff's damage. The answer was a general denial. Whatever title plaintiff had was derived from an execution sale under certain proceedings in a justice of the peace court. The cause was submitted to the court on an agreed statement of facts, and the finding was for defendants, and plaintiff appealed.

The Mt. Nebo Lead & Zinc Company and two individuals were parties defendant in the case at bar, but we will speak of defendant as applying to the company for convenience. One Edes proceeded by attachment in a justice of the peace court to recover $250 of and from defendant Mt. Nebo Lead & Zinc Company, an Oklahoma corporation. The grounds for attachment in the Edes suit were: That the defendant is not a resident of this state; that the defendant is a corporation whose chief office or place of business is out of this state. On the theory that no bond was required since the defendant in the attachment suit in the justice court was a nonresident, none was given. With the attachment writ issued by the justice, the constable on the day of issue, to wit, June 8, 1918, attached as the property of the Mt. Nebo Lead & Zinc Company the property here alleged to have been wrongfully converted by said company. It is conceded that defendant Mt. Nebo Lead & Zinc Company was the owner of the attached property before the proceedings in the attachment case in the justice court, and that said company is yet the owner unless such proceedings divested it of title. So far as appears, the statement and affidavit for attachment in the Edes case in the justice court were regular. The constable made his return on the attachment writ, which contained also a summons, that he attached certain property, describing it, on June 8th, which includes the alleged converted property, and then the return continues:

"And further executed this writ on the 20th day of June, 1918, by making a diligent search for and failing to find the president, vice president or other chief officer of the within named Nehb Lead & Zinc Company, a corporation, within my county."

The return day in the justice court was June 20th. On that day the justice noted in his docket, "that property and effects of the defendant have been attached and that the defendant has not been and cannot be summoned and does not appear in this action, it is therefore ordered that the plaintiff give notice" to defendant by four written or printed advertisements set up in four public places in the county that a writ was issued against it and its property attached to satisfy the demands of the plaintiff, and that unless defendant appeared at the office of the justice on the next law day, July 10, 1918, judgment would be rendered and the property sold. On the next law day, July 10th, defendant did not appear, and a general judgment was rendered, but a special execution issued. Under this execution the constable on the same day levied upon and advertised the attached property for sale on July 20th. The property was sold by the constable to one Scott, and Scott sold whatever interest he had to plaintiff in the present case. It does not appear how the property got out of plaintiff's possession, but it is stated in the agreed statement:

"That the defendants before this suit was brought acquired possession of said property by virtue of a replevin suit against parties other than this plaintiff."

The Mt. Nebo Lead & Zinc Company, defendant in the Edes attachment suit in the justice court, and defendant here, appeared in the justice court on July 26th and filed its affidavit and bond for appeal from the judgment of the justice, and it being a nonresident of the county and having 20 days to take its appeal, section 7568, R. S. 1909, the appeal was granted, and the transcript lodged with the circuit court. On granting the appeal the justice did not give the defendant the certificate provided for by section 7572, R. S. 1909, for presentation to the constable to secure release of the property. Defendant makes the excuse for its failure to request such certificate that the constable had already sold the property when it took its appeal, and such certificate and presentation would have been useless. It appears in the brief of the defendant here that it was successful in the circuit court in defeating the Edes claim. This fact, however, does not appear in the record, and it is not of consequence in the, determination of the cause.

The validity of the judgment and other proceedings in the justice court resulting in the sale of the attached property to plaintiff's vendor are challenged by defendant in the case at bar. If that judgment and proceedings there were insufficient to pass title to plaintiff's vendor who bought at the constable's execution sale, then plaintiff's vendor got no title, and consequently plaintiff got none. That is, if those proceedings did not divest defendant in the case at bar of title to the property alleged to have been converted by it, then plaintiff cannot recover. Defendant contends: (1) That the return of the constable is wholly insufficient to support or justify the order of the justice for constructive service; (2) that the no bond provision of section 2298, R. S. 1909, does not apply to a nonresident corporation, and since no attachment bond was given in the justice court the whole proceeding therein was a nullity and void; (3) that since defendant had 20 days in which to appeal, and did appeal within that time, the constable had no authority to sell under the execution until defendant's time to appeal expired, and that, having sold within that time, such sale passed no title to the purchaser.

Section 7640, R. S. 1909, prescribes the form for the writ which includes the summons to be issued in attachment proceedings in a justice of the peace court. Section 7641 provides that such writ shall be issued and returned in like time and manner as the ordinary summons. Section 7423 provides that every summons issued by a justice of the peace, unless otherwise provided, shall be served at least 10 days before the return day, and where the...