645 S.W.2d 24 | Mo. Ct. App. | 1982
Roy Boyer, Donna Boyer, and Boyer Building Company appeal from the orders of the trial court refusing to quash an execution or stay an execution sale. The execution was against shares of stock of Boyer Building owned by Roy Boyer. The court delineated the orders final and appealable. The orders are appealable. In re Marriage of Haggard, 585 S.W.2d 480 (Mo. banc 1979) [1]; Thummel v. Thummel, 609 S.W.2d 175, 177 n. 1 (Mo.App.1980).
The underlying judgment upon which the execution was based was for $160,000 and was affirmed by this court in Carondelet Savings and Loan Ass’n. v. Boyer, 595 S.W.2d 744 (Mo.App.1980). See also, Boyer v. Anderson, 621 S.W.2d 72 (Mo.App.1981). Carondelet asserts that the appeal should be dismissed because none of the appealing parties have standing to appeal. As to Donna Boyer the motion is well taken.
Donna Boyer sought to intervene in the execution proceeding on the basis that the stock was entireties property in which she had an interest. The court denied her motion to intervene. Although her notice of appeal challenged the denial of her motion to intervene, no mention of that issue has been made in appellants’ brief. The
Boyer Building Company filed no motions to quash or stay. It was, however, the garnishee and as such a party to the execution proceeding.
Roy Boyer’s first contention seeking reversal is that the trial court erred in refusing to quash the execution because the stock certificate was not properly seized by the sheriff. The seizure was effectuated by service of written notice upon Donna Boyer, corporate secretary of Boyer Building. Rule 76.06(f) provides for levy of a share of stock by actual seizure unless the security is in the possession of issuer in which case written notice of the levy to the issuer is sufficient. Sec. 400.8-317(1) RSMo.1978, is similar but appears to limit seizure at the source to those circumstances where the security has been “surrendered to the issuer.” Rule 76.06(f) is procedural and takes precedence over the statute. Mo. Const. Art. V, Sec. 5; Rule 41.02. Here the evidence would support a finding that the certificate was never delivered to Roy Boyer and was at all times in the records of the issuer. That those records may have been in the hands of the attorney of the corporation rather than in the hands of the corporate secretary is of no consequence. The trial court found “constructive possession” in the secretary. That is not strictly correct. The records, including the certificate, were in the actual possession of the corporation through one of its agents and service of notice of levy upon another agent of the corporation was sufficient under the Rule. We find no invalidity in the levy.
Boyer complains of error in allowing Carondelet to question him about “irrelevant collateral acts of misconduct.” His brief does not identify specifically these questions nor explicate the prejudice generated thereby. The objection raised to these questions on appeal is not the same as those raised at trial. The matter has not been preserved for review.
In a series of points Boyer challenges oral findings of fact
Motion to dismiss appeal of Donna Boyer is granted. Orders denying motion to quash execution and to stay execution sale are affirmed.
. In view of our decision on the merits of the case, we find it unnecessary to determine whether Boyer Building had sufficient interest in the subject matter of the execution to be an “aggrieved” party.
. In the order certifying the matters before us as appealable, the trial court also certified “the Findings of Fact and Conclusions of Law found by the Court and dictated into the Record at the hearing of May 7, 1981, regarding Caronde-let’s claims of fraudulent conveyances made by Roy T. Boyer, Donna Boyer and Boyer Building Co., Inc., are all hereby designated as final and appealable Orders and Judgments pursuant to Supreme Court Rule 81.06.”