380 S.W.2d 493 | Mo. Ct. App. | 1964
This appeal arises out of proceedings wherein the respondents sought an injunction to prevent the appellants from obtaining a repossessed title to a truck. The issue presented for our ruling does not deal with the propriety of the trial court’s action in refusing to grant the relief requested, and accordingly, our statement of the factual situation will be very brief. The parties will hereafter be referred to by their designation in the trial court.
The plaintiffs had purchased a “Mister Softee” truck from the corporate defendant. They had paid $4,500.00 down and had given their note secured by a chattel mortgage for the balance due of $10,217.00. This note and chattel mortgage had been sold by the corporate defendant to a finance company. The plaintiffs had been unable to keep the truck in operation, and the defendant Miller had arranged for the plaintiffs to lease the truck to the defendant Evans. The provisions of the lease are not pertinent. Evans got behind in his payments under this lease and also owed money to the defendant Miller. The source of Evans’ indebtedness to Miller does not appear. The plaintiffs were persuaded to execute a new note and chattel mortgage by which they borrowed an additional $3,000.00 and loaned this sum to Evans so that he could pay Miller and pay them the arrearage due them under the lease. This note was for the amount of $5,276.26 which was the
total of the amount Miller told the plaintiffs they owed under the old note, interest, and the $3,000.00. At the same time plaintiffs executed a new lease to Evans by which the payments were increased to retire this new indebtedness. This arrangement is not an issue in this appeal. The plaintiffs did not receive any of this $3,000.00. Evans became in arrears again, and this resulted in the plaintiffs being unable to make their payments to the finance company. That organization, having purchased the plaintiffs’ note from the defendant corporation with recourse, made demand upon the corporate defendant. It does not appear that the corporate defendant ever paid off the plaintiffs’ note to the finance company, although it does appear that the note and chattel mortgage were reassigned to the corporate defendant who then repossessed the truck. The corporate defendant then entered into negotiations with Mister Softee of Los Angeles, Inc., culminating in the truck being sent to California. Upon demand by the California organization for the title to the truck, the defendant corporation requested the proper authorities in this state to issue a repossessed title to the truck in the defendant corporation’s name. Having been notified by the Department of Revenue of this state that it intended to issue title the plaintiffs brought their action to enjoin the defendants for making application and securing such a title. As to the individual defendants, the plaintiffs’ theory was fraud. The plaintiffs had never received title to the truck. They had paid some $10,400.00 on those two notes or some $200.00 over the amount due on the original note plus a down payment of $4,500.00.
When the plaintiffs filed their action, they posted a bond of $5,276.00 with a corporate surety. The trial court approved the bond, issued its temporary restraining order and set a date for the defendants to show cause why the temporary injunction should not be issued as prayed. On the 18th of October, 1962, the hearing to show
The defendants state in their brief that they appeal from the trial court’s action overruling their motion which sought to have the trial court amend its order by striking the words “and bond released.” The motion for new trial is in the same language. Generally appeals do not lie from rulings on motions which do not involve a final disposition of a case. In re Smith, Mo.App., 331 S.W.2d 169; Lowe v. Frede, 258 Mo. 208, 167 S.W. 443. In the instant case the trial court’s action was in effect a denial of any damages to the defendants. In such case an appeal will lie. Section 526.200 RSMo 1959, V.A.M.S., n. 40. We therefore construe defendants’ action as a good faith attempt to appeal from a judgment of the trial court denying them damages upon the trial court’s refusal to grant plaintiffs the injunctive relief for which they prayed.
In Waterman v. Waterman, Mo.App., 210 S.W.2d 723, 1. c. 726, this court held that “[1] ¡ability accrues on an injunction bond, and a defendant’s right of action comes into being, when the impropriety of the issuance of the injunction has been determined as a consequence of the termination of the injunction suit adversely to the party procuring the injunction. Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267.” While the factual situation is somewhat different, this court’s ruling in J. J. Newberry Co. v. Baker, 239 Mo.App. 1130, 205 S.W.2d 935, is to the same effect. In Herbig v. Herbig, Mo.App., 245 S.W.2d 455, 1. c. 457, this court cited with approval Jegglin v. Orr, 224 Mo.App. 773, 29 S.W.2d 721. The Jegglin case held that a suit is prema turely brought and may not be maintained if the petition is filed before the cause of action has accrued. It follows that the defendants’ cause of action on the bond for damages came into being on October 22, when the trial court denied the plaintiffs the injunctive relief they sought. The defendants’ cause of action was not in existence on October 18 at which time the trial court took the order to show cause under submission and ordered that the restraining order it had theretofore issued was to remain in full force and effect. Accordingly, the issue of defendants’ damages against the bond could not have been properly heard and submitted to the trial court.
The plaintiffs’ position is that Civil Rules 92.09 and 92.11, V.A.M.R., do not expressly prevent the parties to an injunction proceeding from submitting the issue of damages to the trial court at the same time as they submit the issue as to the issuance of the injunction. They argue that any procedure which the parties may agree upon and which submits the issue of damages on the injunction bond is sufficient. We cannot agree. In the case of
The judgment should be reversed and the trial court directed to enter its order striking the words “and bond released” from its order of October 22, 1962. The Commissioner so recommends.
PER CURIAM:
The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed with directions.