Williams v. St. Louis

• Decision Date: 09 December 1879
• Citation: 8 Mo.App. 135
• Parties: JOHN H. WILLIAMS, Appellant, v. ST. LOUIS, IRON MOUN TAIN, AND SOUTHERN RAILWAY COMPANY ET AL., Respondents.
• Court: Missouri Court of Appeals

8 Mo.App. 135

JOHN H. WILLIAMS, Appellant,

v.ST. LOUIS, IRON MOUN TAIN, AND SOUTHERN RAILWAY COMPANY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Dec. 9, 1879.

1. Where, after a replevin bond has been given, the defendant disclaims any interest in the property, and another is, on motion, substituted as defendant, the latter cannot have judgment against the plaintiff and his sureties on the bond.

2. The statute does not give an attachment against the property of a married woman; and a sale under such an attachment passes no title.

3. Judicial sales may be collaterally attacked on jurisdictional grounds.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

J. D. JOHNSON, for the appellant: No title passes at a sale under an attachment against the property of a married woman.-- Decker v. Lidwell, 3 Mo. App. 586; Gage v. Gates, 62 Mo. 417. A general judgment against husband and wife on a note executed by the wife is void.-- Wernecke v. Wood, 58 Mo. 357; Caldwell v. Stephen, 57 Mo. 589; Lincoln v. Rowe, 64 Mo. 618.

CHARLES D. YANCEY and ROBERT CRAWFORD, for the respondent Bugg: Bugg was properly made party defendant, that he might propound his interest.-- Volke v. Cerré'sAdministrator, 36 Mo. 575; White v. Van Houten, 51 Mo. 577; Wag. Stats. 1000, sect. 5; The State v. Sanderson, 54 Mo. 303. The court ruled correctly that Bugg, at his option, was entitled to claim value of the property.-- Schulenberg v. Boothe, 65 Mo. 475; Tippock v. Briant, 63 Mo. 580; White v. Graves, 68 Mo. 218. Appellant, not excepting to any evidence, really asks this court to sit as a trial court, not as an appellate court; and that, too, without having an instruction to point out to it the theory of his case.-- The State v. Farmer, 54 Mo. 439; 1 Pat. Dig. 35, sects. 268, 269.

HAYDEN, J., delivered the opinion of the court.

The plaintiff brought this action of replevin against the defendant company and two persons, but the defendants thus sued, it seems, claimed no interest in the property. The lumber in controversy, though found in the possession of the defendant company, was claimed by one Bugg, who, on his motion, was made a defendant, filed an answer, and became the party resisting. Upon the trial, the plaintiff made out a prima facie case. As the foundation of his title, Bugg introduced the record of a suit which had been pending in Wayne County, Missouri, being the case of Bugg v. Leah Cutler and R. Cutler, her husband. From this record it appears that the suit was brought upon bills of exchange executed by Leah Cutler, the wife of her co-defendant; that an attachment was issued in the case upon an affidavit alleging that Leah Cutler was about to convert her property, etc.; that this writ directed the sheriff to attach the property of Leah Cutler and R. Cutler, and was levied on the lumber in controversy; that pending this suit the lumber was sold under the attachment, and at this sale Bugg became the purchaser, and received the property from the sheriff. It further appeared that during this proceeding, and before such sale, the plaintiff in the case at bar filed in the attachment suit an interplea, in which he claimed this lumber as his property, but afterwards, and before the determination of the suit, withdrew this interplea; that in April, 1878, judgment was rendered in the attachment suit against both Leah Cutler and R. Cutler for the amount sued for, which judgment was by consent; and that, by order of court, the proceeds of the sale of the lumber were applied to the judgment.

The court below found the property to be of the value of $262.20, assessed damages, and adjudged that the defendant Bugg recover of the plaintiff and his sureties the property in controversy; or, at his election, that the defendant recover of the plaintiff and his sureties the said sum and damages, etc. The defendant elected to recover the value.

It is obvious that this judgment cannot stand. The statutory bond given by the plaintiff was given to the three defendants sued, and Bugg's name does not occur in it, he having been made a defendant long after the bond was given. Although the statute permits and provides for what is equivalent to a summary proceeding where the plaintiff gives bond for the prosecution of the action and return of the property, and such return is adjudged, yet it is obvious that no such judgment ought to be given unless an action would lie in favor of the defendant for whom judgment is given. The mere fact that judgment may go without a distinct suit ( White v. Van Houten, 51 Mo. 577) does not dispense with the rules of law, and enable a stranger to the bond to recover upon it; nor does the fact that a new party defendant is made, enable such party to recover from sureties who never entered into any obligation to such a person.

Where a defendant in whose possession the property is, is sued in replevin, and disclaims any interest, and the party claiming possession appears and asks to be made a defendant, it is common practice to grant him permission to defend. To allow him to become a defendant avoids circuity of action, and there is no objection to this practice. Vallé v. Cerré, 36 Mo. 585. But, as a matter of course, if the party claiming the property and demanding its return takes no steps to procure a...