74 Mo. App. 257 | Mo. Ct. App. | 1898
ON MOTION FOR REHEARING.
— We approve and appropriate the following from the opinion of Judge Bond, handed down at the October, 1897, term:
“On the 10th of February, 1896, plaintiff brought an attachment suit against defendant, whereunder a stock of merchandise was seized. Three days before the institution of this suit the property in question had been conveyed by defendant in trust to O. O. Hannauer, to secure certain pre-existing creditors. At the time of the levy of the attachment said trustee was in possession of the property under the conveyance to him. After the levy of the attachment he filed a statutory interplea, claiming title to the property as trustee. During the progress of the cause the property was sold by order of court under the statute permitting sales in attachment proceedings.
“Interpleader Hannauer moved to strike out this amended answer, and moved for judgment on the interplea. Both of these motions were overruled. Thereupon he filed a reply to said amended answer, and the cause was submitted to the court without a jury. It was admitted by plaintiff on the trial that notwithstanding the two mortgages under which he claimed title in his amended answer, he knew that the mortgagor (defendant) was disposing of the mortgaged property and effects in the ordinary course of business, l’endering no account of such transactions. The court gave judgment on the interplea in favor of the plaintiff and against the interpleader. From which the inter-pleader appealed to this court.
“The only question to be determined is, whether or not under this record the judgment of the trial court can be affirmed. It is argued in support of the judgment that it is a mere finding against the interpleader, who being virtually a plaintiff in a suit to replevy the attached property was the representative as trustee of pre-existing creditors and could take no better title than was possessed by his grantor, whose title was subject to the two mortgages executed to plaintiff, even conceding that they were made to the use of the mortgagor. This argument does not meet the real difficulties presented by the record. The law is settled in this state that negotiable paper transferred merely as collateral security for a pre-existing debt without any other consideration passing at the time, vests the assignee with title to the instrument, subject to all the
“Plaintiff went further and established his right to attach by a judgment against defendant on the plea in abatement. He then by leave of court filed an amended answer to the interplea, claiming as his own the very property which he had impounded and converted into money as that of defendant. There is no theory of proper procedure justifying such a course. If the attachment suit and all proceedings thereunder had been reasonably dismissed and replevin properly resorted to by plaintiff, a different question would have been presented. These steps were not taken. On the contrary plaintiff pursued his remedy under the attachment process to the fullest extent, by turning the property seized into money, and sustaining his right to attach by a judgment on a plea in abatement. While this statute subsists plaintiff claims the right to assert, against a valid intervention by the interpleader as claimant of title under defendant, that the property did not belong to defendant, but belonged to the plaintiff, thus contradicting the pleadings and the whole theory upon which plaintiff obtained the fruits of the writ of attachment. We are aware of no precedent or principle of law enabling the plaintiff to hold the money paid into the court in this case as the proceeds of the property of defendant with one hand, and to take it with the other hand from a valid transferee of the title of defendant as being the property of the plaintiff himself. Such inconsistency and contradiction in the enforcement -of plaintiff’s rights can not be .supported by any of the cases governing election of
In the argument on the rehearing of the case respondent’s counsel strenuously insist that an inter-plea in an attachment suit is a proceeding separate and apart from the attachment, is in the nature of a replevin suit for the recovery of the attached goods, and that as to such interplea the plaintiff in the attachment occupies the position of a defendant in a replevin suit, and hence can make any defense he may have. In Bank v. Kansas City Lime Co., 43 Mo. App. 561, it was said an interplea may be termed an action of replevin grafted on the attachment law. This case has been followed and approved in several recent cases by this court.