White v. McFarland
| Decision Date | 03 May 1910 |
| Citation | 128 S.W. 23,148 Mo.App. 338 |
| Parties | MARY E. WHITE, Appellant, v. LUCY A. McFARLAND, Executrix, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Geo. C. Hitchcock Judge.
AFFIRMED.
Judgment affirmed.
H. A. & C. R. Hamilton for appellant.
(1) The proper judgment in replevin, where defendant has the property in his possession, is that defendant return the property or pay the assessed value at the election of plaintiff. R. S. Mo. 1899, sec. 4476; Gulath v. Waldstein, 7 Mo.App 66; Bank v. Thompson, 54 Kan. 307; 3 Blackstone Commentaries (Lewis Ed.), p. 153; 2 Chitty on Prac., p. 623; Cobbey on Replevin, sec. 1105; Shinn on Replevin, sec. 661b; 17 Ency. of Pl. and Pr., p. 591. (2) Where a petition states a cause of action against a defendant, showing individual liability, the addition of the words executor, etc., will be considered descriptio personae and disregarded as surplusage. 21 Ency. of Pl. and Pr., pp. 294, 295; Johnson v Gaines, 8 Ala. 791; Litchfield v. Flint, 104 N.Y. 543; Stillwell v. Carpenter, 62 N.Y. 639; Bank v. Shuler, 153 N.Y. 163; Andres v. Kridder, 47 Neb. 585; Thomas v. Carson, 46 Neb. 258; State to use v. Matson, 38 Mo. 489; Lavorty v. Woodward, 16 Iowa 1; Braden v. Hollingsworth, 8 Humph (Tenn.) 19; Hood v. Link, 2 B. Mon. (Ky.) 37; Melone v. Davis, 67 Cal. 279; Munch v. Williamson, 24 Cal. 167; 18 Cyc., p. 881, 882; Waldsmith v. Waldsmith, 2 Ohio 333; Millenberger v. Schlegel, 7 Pa. St. 241; Agee v. Williams, 27 Ala. 644; Bragdon v. Harmon, 69 Me. 29; Stillwell v. Carpenter, 2 Abb. N. C. 238; Rider v. Duval, 28 Texas 622; Fitzhugh v. Fitzhugh, 11 Gratt. (Va.) 300; Genet v. DeGraaf, 27 App.Div. N. Y. (1898) 238; Higgins v. Halligan, 46 Ill. 173; Railroad v. Long, 160 Ind. 564; Shepard v. Creamer, 160 Mass. 496; Jerkowski v. Marco, 56 S.C. 241. (3) If an executor or administrator, as such, receives money or takes possession of property to which the estate has no right, he is personally liable in an action by the real owner for its recovery. Am. and Eng. Ency. of Law (2 Ed.), p. 943; Davis v. Krum, 12 Mo.App. 279; Braden v. Hollingsworth, 8 Humph. (Tenn.) 19; Hood v. Link, 2 B. Mon. (Ky.) 37; Waldsmith v. Waldsmith, 2 Ohio 333; Elmore v. Elmore, 58 S.C. 289; McCustian v. Ramey, 33 Ark. 142; Rose v. Cash, 58 Ind. 278; Daily's Adm. v. Daily, 66 Ala. 266; Smith v. Jefferies, 16 So. Rep. 377; Herd v. Herd, 71 Iowa 497; Newsum v. Newsum, 19 Am. Dec. 739; Clayton v. Boyce, 62 Miss. 390; Thompson v. White, 45 Me. 445; Johnson v. McCain, 188 Pa. St. Rep. 513; Heydenfeldt v. Jacobs, 107 Cal. 373.
P. H. Cullen, Thomas T. Fauntleroy and Shepard Barclay for respondent.
(1) The execution is at least irregular, if not void, because it runs against defendant personally (whose individual property was levied upon and advertised for sale). The suit is against the estate of which defendant is executrix; and no execution can properly issue; but the demand should be certified to the probate court for classification. R. S. 1899, secs. 3177, 191-2, 208-10. (2) Such an execution should be quashed on motion as irregular. Wernecke v. Wood, 58 Mo. 352; Brown v. Woody, 64 Mo. 547; Hinkle v. Kerr, 148 Mo. 43; 1 McQuillin, Pract., sec. 1056. It is the right and duty of the court to control its process so as not to permit an injustice to be done thereby, and especially where the writ (as here) is against positive commands of the statute (sec. 3177). Bryant v. Russell, 127 Mo. 422; Collier v. Lead Co., 208 Mo. 246. (3) If the judgment is to be interpreted as one against defendant individually, then it is irregular because the suit is against defendant only as executrix as the caption and recitals in the petition both prove; and a personal judgment in such case is irregular. Laughlin v. McDonald, 1 Mo. 684; Ranney v. Thomas, 45 Mo. 111; Yarrington v. Robinson, 141 Mass. 450; Boyce Ex. v. Grundy, 9 Pet. 287; Smith v. Chapman, 93 U.S. 41. (4) The execution is in favor of an alleged assignee and the abstract of record here shows no assignment of the judgment. The execution does not conform to the judgment and is hence irregular. Only the assignee is entitled to assert the rights conferred by the judgment. R. S. 1899, secs. 3745-8. (5) The execution is in the alternative for the property in suit "or, at the election of plaintiff" for the value thereof. The latter collection was the object of the levy checked by these motions. The execution in that form was irregular and in excess of the prayer of the petition. (6) The judgment on which the execution was based is irregular and hence it may be set aside after the term of its entry, within three years from its date. It is neither fish, flesh nor fowl. It is irregular and void for uncertainty. R. S. 1899, sec. 795. (7) The relief granted by the judgment is in excess of that prayed, which is irregular in a judgment by default. No other remedy than that first prayed is permissible. R. S. 1899, sec. 776; Heins v. Wicke, 102 Iowa 296; Trust Co. v. College, 68 Minn. 112; Showles v. Freeman, 81 Mo. 540; Lawther v. Agee, 34 Mo. 372; Downing v. Still, 43 Mo. 317; 3 Chitty Pr., 509; 1 McQuillin Pr., sec. 888; Gamache v. Prevost, 71 Mo. 84; Lawther v. Agee, 34 Mo. 372; Stacker v. Court, 25 Mo. 401; Branstetter v. Rives, 34 Mo. 318; Stewart v. Stringer, 41 Mo. 400; Harkness v. Green, 36 Mo. 47; Kelly v. Hogan, 16 Mo. 215. (8) The defendant is sued as executrix and is in charge of an estate as recited in the petition. The writ so runs; yet the return is upon her personally and not as executrix. This is fatally deficient and irregular. 8 Ency. Pl. and Pr., pp. 669, 687, and cases cited. (9) In Missouri returns are strictly construed, and not enlarged by construction. Spencer v. Medder, 5 Mo. 458. (10) The petition does not state a cause of action, and will not support a judgment. It alleges no facts to show title in plaintiff. The allegation that plaintiff is "owner of and lawfully entitled to possession" of the specific property is only a legal conclusion. That formula (or rather one of the two allegations) is permitted in the statutory affidavit for summary delivery (R. S. 1899, sec. 4463) to accompany or supplement a petition; but does not supply any wants therein. As a statutory statement, the petition is fatally deficient in omitting part of the requirements, both the "fourth" and "fifth" thereof being wholly omitted. R. S. 1899, sec. 4463; Gist v. Loring, 60 Mo. 487. The action is maintainable without the statutory affidavit. Eads v. Stephens, 63 Mo. 92. But in that event, facts to establish title in plaintiff are necessary; not legal conclusions alone. Curtis v. Cutler, 7 Neb. 315; Benedict Co. v. Jones, 60 Mo.App. 222. (11) The extent and nature of title claimed by plaintiff must be stated in such an action. Benedict Co. v. Jones, 60 Mo.App. 219; Deyerle v. Hunt, 50 Mo.App. 541; Kern v. Wilson, 73 Iowa 490. (12) When the petition states no cause of action, that objection may be considered first on appeal. Lilly v. Menke, 126 Mo. 190. (13) Where there is a general allegation of ownership and right to possession in plaintiff, and also in the petition a more particular statement that the notes are in possession of defendant and were endorsed in blank by the payee, the more particular statement controls and limits said general language, according to uniform rules of interpretation, and shows no cause of action in plaintiff here. Reynolds v. Copeland, 71 Ind. 422; Haven v. Seeley, 59 Cal. 495; Politowitz v. Tel. Co., 115 Mo.App. 57; Chitty v. Railroad, 148 Mo. 64. (14) Possession of a promissory note endorsed by the payee is prima-facie evidence of title thereto in the possessor (in this case the defendant). The allegations in the petition on this point show affirmatively title in defendant, and no additional facts whereon to base any claim of title by plaintiff thereto. Mason v. Bank, 16 Mo.App. 277; Cloud v. News Co., 23 Mo.App. 319. (15) A default admits only facts well pleaded, and the Statute of Jeofails or amendments is not applicable to a judgment without answer or appearance by defendant. Neidenberger v. Campbell, 11 Mo. 361. The judgment and execution are fatally uncertain, because no election (as mentioned therein) ever was made by plaintiff. Adams v. Champion, 31 Mich. 233.
Plaintiff Mary E. Wright brought an action of replevin to the October term, 1907, of the circuit court of the city of St. Louis, against Lucy A. McFarland, describing the defendant in the caption of the case as Lucy A. McFarland, executrix of Charles W. McFarland, deceased. The opening allegation of the petition is as follows:
"Plaintiff states that on or about the first day of April, 1907, Charles W. McFarland departed this life, and that thereafter, to-wit, on the 22d day of April, 1907, letters testamentary were duly granted to Lucy A. McFarland, the defendant, by the probate court of the city of St. Louis, Missouri, and that thereupon defendant duly qualified as executrix and is now acting as such."
After making that averment plaintiff proceeded to state she was the owner of and lawfully entitled to the possession of certain personal property, to-wit, seven promissory notes all signed by James Sexton, dated September 14, 1906, payable to William Dwyer, one for seventeen hundred dollars, due three years after date and bearing interest at the rate of eight per cent after maturity, and six for fifty-one dollars each representing the interest on the principal note and falling due every six months after date; that said notes are endorsed in blank by the payee, William Dwyer. The petition further alleged plaintiff was the owner of a deed of trust of the same date as the notes, executed by said Sexton and conveying lots in the city of St. Louis to the...
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