Wilkison v. Grugett

• Decision Date: 23 September 1929
• Docket Number: No. 4634.,4634.
• Citation: 20 S.W.2d 936
• Court: Missouri Court of Appeals
• Parties: ALVA WILKISON, RESPONDENT, v. S.E. GRUGETT, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

20 S.W.2d 936

ALVA WILKISON, RESPONDENT, v. S.E. GRUGETT, APPELLANT.^*

No. 4634.

Springfield Court of Appeals. Missouri.

Opinion filed September 23, 1929.

Appeal from the Circuit Court of Dunklin County. — Hon. W.S.C. Walker, Judge.

AFFIRMED.

James V. Billings for appellant.

James A. Bradley for respondent.

SMITH, J.

This is a suit in which the plaintiff, on the 21st day of May, 1927, replevied from the defendant, who was sheriff of Dunklin County, Missouri, an Oakland Automobile Coach. The plaintiff had possession of the automobile at the time of trial. The petition was the usual petition in replevin, with regular affidavit and with an approved bond. The answer was a denial that the property belonged to the plaintiff and a denial that he was entitled to the possession thereof, with an allegation that the property belonged to Jeffie Wilkison, the wife of the plaintiff, and with an allegation that the plaintiff had said that it was the property of his wife, Jeffie Wilkison, and that it was in her possession at the time it was by the defendant taken under an execution growing out of a judgment against Jeffie Wilkison, and that the defendant was entitled to hold said property by reason of said execution, and the levy made thereon by the defendant, and prayed for the return of said property.

The facts show that on the 20th day of May, 1927, a general execution was issued out of the clerk's office of the Dunklin County Circuit Court in the case of C.E. Sullinger, Plaintiff, v. Jeffie Wilkison, Defendant, wherein the plaintiff, Sullinger, had judgment against Jeffie Wilkison for $598.95, plus costs and attorney fees, and said execution was placed in the hands of the defendant, and that he served the writ of execution on the 20th day of May, 1927, by reading the writ to Jeffie Wilkison and by seizing and taking possession of the Oakland Coach Automobile. The testimony shows that Jeffie Wilkison is the wife of the plaintiff, Alva Wilkison, and was in the automobile at the time the sheriff served the execution and took possession of the automobile as the property of Jeffie Wilkison. Alva Wilkison was a resident of Kennett, Missouri, and had formerly been an automobile dealer there for several years under the name of Wilkison Auto Company. In September, 1926, he took bankruptcy for himself and for the Wilkison Auto Company. The automobile in question was a Missouri automobile sold by the Wilkison Auto Company to Ernest G. Finney, of Kennett, on August 3, 1926. Finney, the purchaser of said automobile made and filed his application for ownership certificate with the commissioner of motor vehicles of Missouri and received his ownership certificate. The original certificate of ownership became lost or misplaced and the commissioner issued to Finney a duplicate certificate. On the 17th day of January, 1927, Ernest G. Finney executed and acknowledged the assignment and warranty printed on the back of his certificate of ownership in favor of plaintiff and delivered it to the plaintiff in Dunklin county. Missouri, but there was some testimony that Wilkison had possession of the motor vehicle three or four days before the certificate of title was delivered to him.

The plaintiff made no application to the commissioner of motor vehicles for registration of said automobile or for certificate of title in him, and at no time returned said assigned certificate to the commissioner, and at no time notified the commissioner to cancel the Finney certificate or destroy the registration of said automobile in Missouri. In fact, he did not communicate in any manner with the commissioner with reference to the automobile, nor did Jeffie Wilkison.

The plaintiff accepted a position as automobile salesman in Memphis, Tennessee, and remained there the most of the time for about four months prior to the institution of this suit. He took the automobile with him to Memphis, and said it was not his intention to use the automobile in Missouri, but did not secure certificate of ownership thereto from the State of Tennessee, nor did he at any time register it in Tennessee. He did not purchase any license plates with which to operate the car in 1927, but secured license plates issued by the State of Tennessee and the city of Memphis to other persons for other automobiles, and placed them upon this automobile, and operated this automobile under these unauthorized plates. He and his wife drove the automobile in Tennessee and in Missouri. He drove it at times and his wife drove it at times, and it was in Missouri at the time the sheriff levied upon it, and Jeffie Wilkison, the wife of plaintiff was in the vehicle at that time and had the key to it, and the sheriff took the property under the execution as being that of plaintiff's wife, Jeffie Wilkison.

Plaintiff, for the purpose of showing title to said automobile, and that he was entitled to the possession thereof, testified that he bought the automobile from Finney, and that his wife did not own it, and he did not tell the sheriff that it belonged to his wife, and offered in evidence the duplicate certificate of ownership issued to Ernest G. Finney, and by Finney assigned on the back thereof to plaintiff, duly acknowledged before a notary public. This offer, upon objection of the defendant, was excluded by the court.

The defendant offered in evidence the execution against Jeffie Wilkison with his return thereon, and rested. A verdict in said cause was returned, under direction of the court, for the defendant for possession of the automobile, and for the jury to assess the value thereof, which was accordingly done; the value of the automobile being fixed by the jury at the sum of $500.

Within proper time after the return of the verdict the plaintiff filed his motion for a new trial in said cause, which said motion was by the court sustained. The order made and entered of record at the time, being as follows to-wit:

"Motion for new trial sustained because the court erred in excluding from the evidence (offered for the purpose of showing title in plaintiff) the certificate of title originally issued to E.G. Finney, and by him assigned to the plaintiff January 17, 1927, which had not been sent to the Secretary of State for a new certificate of ownership in the plaintiff."

This appeal is from the order of the court granting a new trial.

The plaintiff and the defendant agree that there is only one question involved in this litigation, that is, did the court err in granting a new trial because of the refusal to admit in evidence the certificate of title offered by plaintiff, which certificate had been properly assigned to him, but had not been returned to the commissioner of motor vehicles for a new certificate. The defendant insists that the assignment of the certificate of ownership of the automobile does not constitute legal title in the assignee until the assigned certificate of ownership is returned to, and application is made with the commissioner of motor vehicles for registration of title in assignee, or until notification for cancellation of the prior registration has been made. Defendant claims that, then, and not until then, does title pass to the assignee; and since this was not done, Wilkison never had legal title to the automobile and was not entitled to the possession thereof under the replevin proceedings, and that such a certificate was not proper evidence in a replevin suit. The plaintiff insists that since Finney was the direct and legal owner of the automobile in question, and holding proper certificate of title therefor, he passed title to Wilkison when he assigned said certificate before a notary public as required by law, and delivered the same to Wilkison at...