Winchester v. Burris

• Decision Date: 02 July 1915
• Docket Number: No. 13928.,13928.
• Citation: 178 S.W. 286
• Parties: WINCHESTER v. BURRIS.
• Court: Missouri Court of Appeals

178 S.W. 286

WINCHESTER v. BURRIS.

No. 13928.

St. Louis Court of Appeals. Missouri.

July 2, 1915.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

"Not to be officially published."

Action by John H. Harty, revived on his death in the name of J. F. Winchester, as administrator, against L. Burris. From a judgment for plaintiff, defendant appeals. Affirmed.

J. L. Fort, of Dexter, and E. H. Williamson, for appellant. H. N. Phillips, of Poplar Bluff, for respondent.

ALLEN, J.

This is a suit for the alleged conversion by defendant of certain logs and lumber. The action was instituted in the circuit court of Stoddard county by John H. Harty, who prosecuted the same to judgment in the trial court. Pending the appeal plaintiff (Harty) died, and the cause has been revived in the name of his administrator, respondent herein.

The petition alleges that plaintiff, on January 7, 1908, was lawfully possessed, as of his own property, of 24,412 feet of oak logs, 23,423 feet of gum lumber, and 10,211 feet of gum logs, of the value of $600, said logs and lumber being located at or near the station of Mingo, in Stoddard county, Mo.; that the defendant wrongfully entered upon the premises and took possession of said logs and lumber, removed the property from said premises, and refused to deliver it to plaintiff upon demand, and wrongfully converted the same to his own use, to plaintiff's damage in the sum of $600. The answer is a general denial. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $526, and the case is here upon defendant's appeal.

It appears that prior to January 7, 1908, the plaintiff owned certain logs, some of them being of oak and some of gum, which he caused to be hauled to the premises of the Mingo Mill & Lumber Company, at or near Mingo station, in Stoddard county, Mo. One Sawyer owned and operated the sawmill in question, which he conducted under the name of Mingo Mill & Lumber Company. Plaintiff's testimony is to the effect that, after placing his logs upon the yards at the mill in question, it was agreed by and between him and Sawyer that the latter would saw the logs into lumber and would have the option of purchasing such lumber from plaintiff, but that, if he did not purchase and pay for the same, then plaintiff would pay him certain stipulated prices for the sawing. A part of the logs had been sawed into lumber, when the mill closed down because of the failure of Sawyer to pay his employes. Certain of the mill employes thereupon instituted a suit by attachment against Sawyer, for wages due them, before a justice of the peace in Stoddard county. Under an execution issued upon a judgment rendered in favor of the plaintiff in said action, all of the logs and lumber then situated upon the mill premises, including the property here in question, were sold at a constable's sale; the defendant, Burris, being the purchaser thereof.

Thereafter Sawyer instituted a replevin suit against Burris, seeking to replevy all of the property thus sold. That action was tried in the circuit court of Stoddard county, and reached this court on appeal, where it was disposed of by the opinion in Sawyer v. Burris, 141 Mo. App. 108, 121 S. W. 321. It was there held that the record in the attachment suit mentioned above showed no jurisdiction in the justice of the peace who...