Monarch Rubber Co. v. Bunn

82 Mo. App. 603 | Mo. Ct. App. | 1900

GILL, J".

The Monarch Rubber Company brought an attachment suit in the Vernon circuit court against defendant Bunn — writs being issued to Vernon county and to Cedar county where said Bunn resided. Under the writ to Cedar county the sheriff levied on certain goods therein as the property of Bunn. Subsequently, Hutchison filed his interplea claiming the goods attached in Cedar county. On the trial of the issues formed by plaintiff’s answer to the interplea, it is conceded that the evidence tended to prove that Hutchison’s alleged purchase of the goods from Bunn was merely color-able, and was made with the intent to hinder, delay and defraud Bunn’s creditors, among whom was the Monarch Rubber Company.

There was a verdict and judgment for the plaintiff, and against the interpleader, and the latter appealed.

1. The sole question on this appeal is one of jurisdiction. Counsel for interpleader claim that there was some evidence that at the time the goods in controversy were levied on, said interpleader was in the actual possession thereof. It is also claimed that under the writ of attachment issued to Vernon county no property of the defendant Bunn was there seized, and hence the writ to Cedar county was without authority and void. On this assumption the interpleader asked, but the trial judge refused the following instruction: “If the jury believe from the evidence that interpleader Hutchison was in possession of the stock of goods in controversy at the time the attachment was levied by the sheriff of Cedar county, the verdict should be for the interpleader.”

The theory of this instruction is, that bare possession of personal property is sufficient to resist the claim of one clothed with no right whatever.

Interpleader’s counsel are clearly correct in the contention that the circuit court of Vernon county had no authority to issue a writ of attachment to Cedar county, unless property of the defendant was found and attached in said Vernon county. The defendant resided in Cedar county, was served there and never appeared in any way to the action. The only way then that the Vernon county court could acquire jurisdiction to issue a writ of attachment to Cedar county was by attaching property of the defendant found in Vernon county. R. S. 1889, sections 541 and 2010.

2. In this case however we are not legally informed as to whether or not the property of the defendant Bunn was attached under the writ issued to Vernon county. We assert this in face of the fact that interpleader’s counsel, in their statement of the case, attempt to copy what is termed the sheriff’s return on the Vernon county writ. It does not appear that said writ and return were ever introduced in evidence in the trial of the interplea; the bill of exceptions contains no such matter, and it therefore comprises no part of the record here for review.

3. It is well settled that an interplea is in the nature of an independent action and its records are to be evidenced and treated separately from the main case. Wolff v. Vette, 17 Mo. App. 36; Crow H. & Co. v. Stevens, 44 Mo. App. 137. In the absence then of a showing to the contrary, we must assume that property of the defendant Bunn was seized and attached under the Vernon county writ. The court there being one of general jurisdiction every presumption in its favor will be indulged. Gates v. Tusten, 89 Mo. 13.

4. The jurisdiction then of the circuit court of Vernon county being conceded, its writ of attachment to Oedar county must be treated as valid, and tbe sheriff then was not a mere trespasser while levying on property found to belong to the defendant Bunn.

It results then that the judgment of the lower court must be affirmed.

All concur.