Wisdom v. Keithley

• Citation: 167 S.W.2d 450
• Decision Date: 05 January 1943
• Docket Number: No. 26168.,26168.
• Parties: JOHN C. WISDOM, PLAINTIFF IN ERROR, v. E.A. KEITHLEY, JAMES WALTER LEWIS, AND WALTER McPHERSON, HENRY HOUCHENS, AND HOLLAND MOORE, DOING BUSINESS AS SCOTLAND COUNTY SALES COMPANY, DEFENDANTS IN ERROR.
• Court: Missouri Court of Appeals

167 S.W.2d 450

JOHN C. WISDOM, PLAINTIFF IN ERROR, v. E.A. KEITHLEY, JAMES WALTER LEWIS, AND WALTER McPHERSON, HENRY HOUCHENS, AND HOLLAND MOORE, DOING BUSINESS AS SCOTLAND COUNTY SALES COMPANY, DEFENDANTS IN ERROR.

No. 26168.

St. Louis Court of Appeals, Missouri.

Opinion filed January 5, 1943.

Motion of Defendants in Error for Rehearing Overruled January 22, 1943.

Petition for Writ of Certiorari Denied March 2, 1943.

Error to the Circuit Court of Pike County. — Hon. Edgar B. Woolfolk, Judge.

REVERSED AND REMANDED (with directions).

Davis Benning and Wisdom & Wisdom for plaintiff in error.

(1) The trial court is required, upon motion of either party, to make findings of fact upon every constitute fact or circumstance involved in the case, and a failure to do so is reversible error. Robertson v. Brotherhood, 233 Mo. App. 159, 173, 114 S.W. (2d) 136; Farmers' Trust & Savings Bank v. Miller, 203 Iowa, 1383. (2) The trial court may permit an amendment to the petition at any time before final judgment in the interests of justice, and the refusal to permit such an amendment to plead the law of a foreign State is reversible error. Sec. 971, R.S. Mo. 1939; Houts, Pleading & Practice, sec. 159; Montague v. Railway Co., 289 Mo. 288, 233 S.W. 189, 194; Cramer v. Parker (Mo. App.), 100 S.W. (2d) 640, 646; Farmers' Trust & Savings Bank v. Miller, 203 Iowa, 1380. (3) The plaintiff's third amended petition, upon which the case was tried, states a cause of action in that it states the law of the State of Iowa with reference to the filing, recording and indexing of chattel mortgages in the State of Iowa, and the legal effect thereof, and the court erred in not finding such to be the fact, and in its first conclusion of law, that by failing to plead the chattel mortgage statutes of the State of Iowa, the plaintiff had not pledged a cause of action. Secs. 953, 958, R.S. Mo. 1939; Corley et al. v. Montgomery, 226 Mo. App. 795, 36 S.W. (2d) 283, 285; Menard v. Goltra, 40 S.W. (2d) 1053, 1057; O'Connell v. Smith et al. (Mo. App.), 131 S.W. (2d) 730, 732; Farmers' Trust & Savings Bank v. Miller, 203 Iowa, 1380, 214 N.W. 546; Loranz & Co. v. Smith, 204 Iowa, 35, 36, 241 N.W. 525, 53 A.L.R. 662; Slimmer & Thomas v. Lawler, 205 Iowa, 813, 818, 218 N.W. 516. (4) The plaintiff's mortgage conveys to plaintiff the eight (8) two-year-old Hereford steers involved in this case, and gives him a valid lien upon them, under the laws of the State of Iowa, even though they were acquired after the mortgage was given, and the mortgage was entitled to full force and effect in the State of Missouri by comity, without being recorded in Scotland, Schuyler, or Pike Counties, Missouri, and defendants were charged with notice of said mortgage. Stephens v. Pence, 56 Iowa, 257, 258, 9 N.W. 215; Wheeler v. Becker, 68 Iowa, 723, 28 N.W. 40; Lowden Savings Bank v. Zeller, 196 Iowa, 1205, 1211, 194 N.W. 966; Farmers' Trust & Savings Bank v. Miller, 203 Iowa, 1380, 214 N.W. 546; Bank v. Norris, 114 Mo. 255, 262, 21 S.W. 511, 512; Bank v. Cassidy, 71 Mo. App. 186, 196; Shapard v. Hynes, 104 Fed. 449, 452; Finance Service Corp. v. Kelly, 235 S.W. 146; Steckel v. Swift & Co., 56 S.W. (2d) 806, 808; Parker-Harris Co. v. Stephens, 205 Mo. App. 373, 224 S.W. 1036; Associated Investors Co. v. Froelich, 34 S.W. (2d) 987; State v. Bowman, 184 Mo. App. 549, 553, 170 S.W. 700, 701; Lipscomb v. Adams, 193 Mo. 530, 542, 91 S.W. 1046, 1048; In re Rahns Estate, 316 Mo. 492, 500, 291 S.W. 120, 122, 123, 51 A.L.R. 877, 883, 884; Smith-Wallace Shoe Co. v. Wilson, 63 Mo. App. 326, 329-331; Williams v. Kimball Co., 188 Mo. App. 646, 649, 650, 176 S.W. 478, 480; First Nat. Bank v. Johnson, 221 Mo. App. 31, 37, 297 S.W. 724, 726; Everett v. Barse Livestock Comm. Co., 115 Mo. App. 482, 487, 88 S.W. 165, 166; Parker-Harris Co. v. Stephens, 205 Mo. App. 373, 380, 224 S.W. 1036, 1038; Associates Inv. Co. v. Froelich, 34 S.W. (2d) 987, 988; Goodrich, on "Conflict of Laws," 356, sec. 151; American Law Institute, Restatement No. 3 of "Conflict of Laws," sec. 287; 11 C.J., page 424, sec. 33; Nat. Bank of Commerce v. Morris, 114 Mo. 255, 262, 21 S.W. 511, 512; Arkansas City Bank v. Cassidy, 71 Mo. App. 186; Metzger v. Columbia Terminals Co., 50 S.W. (2d) 682; Rubenstein v. Nourse, 70 F. (2d) 482, 484; Storey on Contracts, sec. 546; Swann v. Swann, 21 Fed. 301. (5) Factors or brokers, even selling upon a commission basis only, are liable to the true owner of the property, if mortgaged, and if they sell it, collect the proceeds of the sale, and remit less their commissions to their principal, and deliver the mortgaged property to the purchaser; therefore, the defendants, McPherson, Houchens and Moore, operating the Scotland County Sales Company, as a partnership, are liable to the plaintiff, resulting from their sale of the mortgaged property. Mohr v. Langan, 162 Mo. 474, 501, 63 S.W. 409, 416, 417; Arkansas City Bank v. Cassidy et al., 71 Mo. App. 186, 198; City Nat. Bank v. Goodloe Comm. Co., 93 Mo. App. 123; Everett v. Barse Livestock Comm. Co., 115 Mo. App. 482, 487, 88 S.W. 165, 166; Ess v. Griffith, 128 Mo. 62; Nat. Bank of Commerce v. Morris, 114 Mo. 255, 115 Mo. App. 487, 288, 88 S.W. 166. (6) The rule of caveat emptor applies to one purchasing personal property covered by a chattel mortgage, even in the open market, and this rule renders the defendant Lewis and the defendant Keithley, who purchased through Lewis, liable to the plaintiff in this action. Nat. Bank of Commerce v. Morris, 114 Mo. 250, 255, 260, 21 S.W. 511, 512; Schmidt v. Rankin, 193 Mo. 254, 276, 277, 91 S.W. 78, 84. (7) Here the trial court's finding of facts and conclusions of law were incorporated into, and made a part of, the judgment, and, in that way, became part of the record proper in this case. State ex rel. United Brick & Tile Co. et al. v. Wright, 95 S.W. (2d) 804, 806, 807; Snuffer v. Karr, 197 Mo. 182, 94 S.W. 983, 985; 7 Ann. Cases 780. In Fruin v. O'Malley, 241 Mo. 250, relied upon by defendants-in-error, the court pointed out that the trial court's finding of facts was not a part of the judgment. (8) The petition which is a part of the record proper pleaded the law of Iowa with reference to the filing, recording and indexing of chattel mortgages in the State of Iowa and the legal effect thereof. Where the law of a foreign state is pleaded it is the duty of the trial court under the law of Missouri to take judicial notice of both the statutes and the judicial decisions of such foreign state. Sec. 958, R.S. 1939; Menard v. Goltra, 40 S.W. (2d) 1053, 1057.

May & May for defendants in error.

(1) The trial court had no right to grant additional time to file a motion for a new trial. It was mandatory that it be filed within four days after judgment. Sec. 1171, R.S. Mo. 1939; Williams v. Railroad, 156 Mo. App. 677; State ex rel. v. Ellison, 256 Mo. 664; Bank v. Porter, 148 Mo. 183; City of St. Joseph v. Robinson, 125 Mo. 1; Bank v. Bennett, 138 Mo. 494; St. Louis Law Printing Co. v. Aufderheide, 45 S.W. (2d) 545; St. Louis v. Boyce, 130 Mo. 572; Taylor v. Cleveland Ry. Co., 63 S.W. (2d) 69; King v. Gilson, 206 Mo. 264, 280; Jones v. Marblehead Co., 152 Mo. App. 79; Harkness v. Jarvis, 182 Mo. 239. (2) The motion for a new trial being filed out of time amounts to no motion at all and this court can only consider the record proper. Lee's Summit Bldg. & Loan Assn. v. Cross, 134 S.W. (2d) 19, 23; Marsala v. Marsala, 232 S.W. 1048; Tucker v. Buford, 95 S.W. (2d) 866; Kerner v. Conkle, 78 Mo. App. 64; Tucker v. Burford, 95 S.W. (2d) 866. (3) In absence for motion for new trial this court cannot consider the bill of exceptions. Spotts v. Spotts, 55 S.W. (2d) 977, 980; Syz v. Milk Wagon Drivers Union Local 603, 18 S.W. (2d) 441, 443; Coffey v. City of Carthage, 200 Mo. 616; Leahy v. Mercantile Trust Co., 247 S.W. 396; Maplegreen Co. v. Trust Co., 237 Mo. 350, 363; Foster v. Sayman, 181 S.W. 1186, 1188. Where no motion for a new trial was filed in the court below the appellate court is confined to an examination of the record proper. Kalamazoo Looseleaf Binding Co. v. Con P. Curran Printing Co., 242 S.W. 982; Pickel v. Pickel, 176 Mo. App. 673; State ex rel. State Highway Commission v. Brown, 95 S.W. (2d) 661. Only such exceptions as are covered by the motion for new trial will be considered by the appellate court. Snook v. Sevier, 278 S.W. 1084; Records v. Powell, 278 S.W. 1078; Hill v. Davis, 257 S.W. 1069; Marsh v. Davis, 251 S.W. 390; West v. Duncan, 249 S.W. 127; Hopper v. Bowen, 249 S.W. 92; U.S. Wood Preserving Co. v. Granite Bituminous Paving Co., 245 S.W. 349; Russo v. Brooks, 214 S.W. 429; Adams v. Kendrick, 11 S.W. (2d) 16; Huhn v. Ruprecht, 2 S.W. (2d) 760. (4) Since plaintiff failed to plead and prove any statute of the State of Iowa making the recording of a chattel mortgage constructive notice of its existence and contents, it will be presumed that the common law prevails in that State. Phipps v. Markin, 220 S.W. 870; Boyer v. N. Drayage Co., 67 S.W. (2d) 770; Myer v. McCabe, 73 Mo. 236; Stevenson v. Smith, 189 Mo. 447; McPike v. McPike, 111 Mo. 226. The record of a deed cannot be made constructive notice of the existence or contents of the deed unless made so by positive statutory enactment. Jordan v. Pence, 123 Mo. App. 321; Kelly v. Vandiver, 75 Mo. App. 440. Courts do not take judicial knowledge of statutory law of another State or its judicial decisions interpreting such law. Where statutory law of another State is vital part of action, plaintiff must both allege and prove statutes of that State authorizing action. Rositzky v. Rositzky, 46 S.W. (2d) 591; Corbett v. Terminal Ry. Assn., 82 S.W. (2d) 97. Unless a foreign statute is properly pleaded our comity statute (Sec. 806, R.S. 1929) has no application. Corbett v. Terminal Ry. Assn., 82 S.W. (2d) 101; Barnes v. Railway, 90 S.W. (2d) 166. On the question of comity, before it could be applied in this case, plaintiff was required to plead...