53 Mo. App. 23 | Mo. Ct. App. | 1893
— An attachment suit was brought by the Nelson Distilling Company, appellant, against defendants, Hubbard, and Schultz. The writ of attachment was levied upon a kiln of about one hundred and sixty-five thousand brick, as the property of defendants. This property was sold by the sheriff under the order of the judge of the court wherein the said attachment suit Aras pending. Thereafter William 0. Parker, the respondent herein, filed an interplea in said cause, reciting the issuance and levy of said attachment on the aforesaid property, and alleging that the value thereof was $1,500; that the sheriff had sold the same under the order of the judge of said court, and now holds the proceeds thereof; that, at the time of the seizure and sale, said kiln of bricks was the property of said interpleader under a contract between him and defendants, Hubbard and Schultz, by which he was to be paid “for burning them a kiln of brick,” certain prices for certain services, and that said brick kiln “was to be and remain in the possession of said W. C. Parker until he was fully paid according to the terms of the contract;” and, further, “that he duly performed all of the conditions of said contract on his part, and burned and made a kiln of brick containing one hundred and sixty-eight thousand brick, and that the amount justly due claimant on said contract is the
From this judgment an appeal was taken, and the questions now before us for review are confined to alleged errors in the giving and refusing of instructions, and in the admission and exclusion of testimony, and such as arise upon the record proper. As to errors alleged for the refusal of the nine instructions asked by the appellant, and the giving of others of the court’s own motion, we are satisfied that no reversible error was committed. The pivotal points in the case were possession and fraud, and these were fully covered in the instructions, taken as a whole. On the point of possession the court gave at. appellant’s request the following : “The court instructs you that, even if you should
As to the charge of fraud, the court gave of its own motion the following: “If you believe the contract entered into between Hubbard and Schultz, on the one hand, and Parker on the other, was a bad faith transaction on the part of Parker, or, if you believe said contract was entered into with a design to defeat or to hinder or to delay the creditors in their collections, and that said Parker participated therein, or if you believe the claim of Parker is a cover of the property of Hubbard and Schultz, or to withdraw it from the reach of creditors, then in any such case you will find for the Nelson Distilling Company."
“If you believe that the brick kiln levied upon by the sheriff was the property of Hubbard and Schultz, and the interpleader, Parker, did not have and hold possession of the same under a good faith transaction to pay for making and burning the same, then your verdict should be for the Nelson Distilling Company."
The foregoing instructions embody in substance all that was contained in the nine instructions of appellant, which the court declined to give, and the first clause of the one above given contained an error in plaintiff’s favor by ignoring the question of fraud or bad intent on defendants’ part, and directing the jury to find for plaintiff if they “believed the contract entered into between Hubbard and Schultz on the one hand, and Parker on the other, was a bad faith transaction on the part of Parker" alone.
The only question left for review upon this record arises upon the face of the record proper, and is whether or not the judgment rendered by the trial •court (above quoted) was the proper judgment to have been given under the facts, and the procedure adopted in this case.
It is the settled law of this state that a statutory interplea (Revised Statutes, 1889, sec. 572) is a quasi action of replevin grafted upon a suit by attachment. Burgert v. Borchert, 59 Mo. 80; Bradley-Hubbard Mfg. Co. v. Bean, 20 Mo. App. 111; First Nat. Bank v. Lime Co., 43 Mo. App. 561; Hellman & Co. v. Pollock & Co., 47 Mo. App. 205. It is equally well settled that, on the trial of the interplea, where the inter-pleader claims general ownership of the property, the •only issue which can be submitted to the jury is whether the property attached was the property of the interpleader or not. Mills v. Thompson, 61 Mo. 415; Hewson v. Tootle, 72 Mo. 632; Nolan v. Deutsch, 23 Mo. App. 1.
. It has also been held in this state that, after recovery by an interpleader in an attachment suit, he may .sue the sheriff and his bondsmen for the value of the property seized, over and above the proceeds adjudged .and paid over to the interpleader in the attachment suit. State ex rel. v. Barker, 26 Mo. App. 487; Clark v. Brott, 71 Mo. 473. It will be observed that in the statement of the facts in State ex rel. v. Barker, supra (as well as in the brief of counsel for relator in that case), it clearly appears that the interpleader in the attachment suit, after the verdict in his favor, had received the proceeds of sale of the attached property under a judgment awarding them to him.
Although tnere is no direct statement in Clark v.
After the finding by the jury ón the issue made on the interplea herein in favor of the interpleader, the judgment which the court should have rendered under proper findings was that the interpleader "have and recover, to the extent of his interest, the proceeds arising from the sale of the goods by the sheriff, who is thereby ordered to pay such proceeds to the interpleader.” In the case of Hewson v. Tootle, supra, it was held that the proper judgment in such cases is for the proceeds of sale, provided the interpleader gets a verdict on the issue of full title to the property sold; and the same rule has been announced by this court in Rindshoff, Stern, Lauer & Co. v. Rogers, 34 Mo. App. 126, 131. If there could be any question as to the effect of these determinations in holding that the cash proceeds of the sale of property by order of the court in attachment proceedings become the substitute of the property sold, it is put at rest by the doctrine established by the supreme court. Young v. Kellar, 94 Mo. 581. That was an action of replevin brought by the alleged owner against a purchaser of goods which had
It follows, therefore, that the judgment in the case at bar is error apparent on the face of the record, since it attempted to dispose of property over which the court had parted with control, the title or possession of which the interpleader could not have acquired in a direct replevin suit, and for a stronger reason could not have acquired by taking judgment therefor in a quasi replevin suit (interplea), to which the purchaser
As this case- must be retried, we deem it proper to indicate our views as to the proper method of conducting the next trial. In Hewson v. Tootle, supra, the interpleader claimed the general ownership of the goods in controversy. There was, therefore, in that case only one issue, i. e., whether or not the attached property belonged to the interpleader. In cases of special ownership, or partial interest in the. attached property or its proceeds, where there is a privity of title between the interpleader and the defendant in the attachment suit, two issues should be submitted to the jury: First. As to the right of property and possession. Second. In case the first issue is found for the interpleader, the jury should make a finding as to the extent of his interest therein, and,- where both of these issues are found for the interpleader, the court should render judgment corresponding to the findings, and, if the specific property has been sold by order of court in the attachment suit prior to these findings, then the judgment of the court should award the proceeds of -such sale to the interpleader according to his interest therein, as ascertained by the verdict of the jury on the .second issue. We believe this to be the proper construction of the statute (Revised Statutes, 1889, see. 572) in such cases, and it is in exact analogy with the construction given to the statutes providing for replevin suits proper. Lewis v. Mason, 94 Mo. 551; Dougherty v. Cooper, 77 Mo. 534; Gilman v. Kerone, 45 Mo. 487; Boutell v. Warne, 62 Mo. 353; Dilworth v. McKelvy, 30 Mo. 149.
We are, therefore, constrained, inasmuch' as there are not sufficient data in the record to enable us to render a proper judgment in this cause, to reverse the