*1 Dudley & to the defendants assigned, her F. Feurt and Numa nor on this note determining the amount due Brandom. We judgment re- is with Homer Feurt. The contract on the proceedings further accordance cause remanded and the versed Hyde, GC., Ferguson and concur. opinion. with this by Sturgis, C., adopted foregoing opinion PER CURIAM: The judges concur. All court. opinion of this a Cor Corporation, See, Appellant, Automobile v. Clell Spencer (2d) 993. S. W. Mathis. 50 poration, One, 13, 1932. June Division appellant. Waldo Edwards for Jeffries,

G. G-. Simpson Buster & Plummer respondent. *2 brought FERGUSON, plaintiff, See, 0. The action for this damages charging unlawfully that forcibly defendants and “took away from” At him certain automobile in petition. a described plaintiff’s the close of evidence the court mo- sustained defendants’ tions whereupon involuntary plaintiff directed verdicts took an nonsuit with leave to move to same aside. Plaintiff’s motion to set set involuntary appealed. aside nonsuit was overruled and appeal granted The City Appeals was to the Kansas Court of but that court, term, 1929, at its October transferred cause to this ground court dispute on the juris- that the amount exceeds the diction of of Appeals. the Court (Automobile petition

The alleges, “that the defendants Corporation Mathis) Spencer through agents servants, and and forcibly, unlawfully, willfully any right or and without took from the plaintiff passenger one five Ford and automobile kept the same in their upon and refused demand of to redeliver him until plaintiff the same to threat- bring legal proceedings automobile; ened to to recover said kept unlawfully in their possession said automobile and days wrongfully during five and time was deprived of the which, use of his automobile.” Other matter we assume, plead special damages alleged plain- it is intended and compensatory stated, tiff damages, punitive, separately claims and aggregating $20,000. separate answer defendant Mathis general Defendant, Corporation denial. Automobile Discount allegation” separate answer, every peti- each first “denies alleges petition tion and then that at the time mentioned in the promissory it was the owner and holder of installment securing mortgage by plaintiff note a chattel same executed upon petition; mentioned the chattel automobile that, upon mortgage a valid lien said automobile and constituted mortgage provides: payment said “That default be made note, mortgagee or if the shall feel of the installments of said removal, option fear all installments shall at the insecure or of said mortgagee payable once due without notice become at mortgagee thereupon shall have the . . . public at auction property property the said sell said private states, or The answer sale with without notice.” then 1926, “at prior to October information received under said chattel which it to deem itself insecure defendant caused mortgage property a removal said it to fear caused would- county virtue thereof this defendant of Macon and of said car under

have been entitled allegation” oí every 'mortgage.” reply Plaintiffs’ ‘‘denies each the answer. summary developed by the evidence We undertake a the facts tv, court, demurrers, held insufficient

which defendants’ petition. an allegations Mathis was sustain the Defendant See, July, 1926, plaintiff, In Callao, at automobile dealer Missouri. purchased pleadings the Ford automobile mentioned executing an install- making payment thereon and cash payable purchase price, promissory ment note for the balance of the mortgage monthly installments. also executed the chattel three of the defendant to in the answer referred the terms payment of note. The contained secure the quoted Mathis sold and therefrom said answer. and conditions Automobile Discount to defendant endorsed the note *3 of Mis- city Louis, the St. place whose office and of business was engaged in farm- souri. real estate. He was any not own See did 1926, an- October, posted In he advertisements ing land. rented going I I Public Auction” will sell at nouncing, am to Colorado ‘‘As 11,” designated Monday, per- certain place, ‘‘on October listed at a for property. sonal was not listed sale. Mathis ob- automobile serving of therein See sale and the announcement the notices Corporation ‘‘going notified Discount thereof to Colorado” the was following day by 7th. The the Discount Cor- letter dated October telegram ‘‘Mortgage Mathis, prohibits removing poration to sent attempt amount if to Take car or collect full made car from State. Writing.” By (October 8) of letter that date the move. the next installment on the note Corporation advised Mathis that to take possession th and he was directed would be due on October all installments paid if at time and declare of car it was mortgage of he was to referring terms directed to the due and ear attempt by to upon an remove the take of the car A mortgage. repossession order provisions contrary to the Louis, Mis- dated at St. repossession This order was enclosed. 1926, signed by Automobile Discount souri, October hereby by ‘‘You are authorized directed and reads: and its President Touring, See, Callao, Ford Clell repossess to now mortgage by a terms of chattel held us which Missouri, described) attempt dispose to (then secures an indebtedness made. Under the terms said it from State is the car or remove now all installments of said note due and declare we you repossess to said car without hereby violence direct payable and law, account.” This order was sell it our and, by process due October, Mathis to See’s On went anyone. the 10th to not directed No refused. car which was home demanded and installment of “Mr. Mathis the note was then due. See testifies: selling said, you going ‘Clell what that car. are to do about You going J away you payments.’ said, out and I ‘Yes and owe two days. know that. It I make isn’t due seven Have failed to payment?’ said, said, up ‘No.’ ‘I will town He He take the away.’ I put said, my said, it I will He ‘Well ‘No, keep own.’ you.’ Mathis, will I he could we have to take it told ‘if ’’ ’ way. go any take it law he take it and it couldn’t other could county On 32th of October Mathis called requested as him The sheriff to the car See. testifies (Mathis) my “He to office to what then occurred follows: came bought it and said that Clell See had an automobile and he county payments sale; going and that he had a to leave the gone and See that he wanted that car that he had down there give up go refused to it down and take the and he wanted me papers I him he me papers car. asked about the he had told —if (Identified repossession papers. had and showed me the Mathis) I over sent read order T question my whether paper told him there was a mind way paper, car on and he said ‘well that’s the could take the they payments another said, it.’ I has made all his do ‘well he yet question my payment is a mind whether isn’t due and there So I him to paper.’ prosecut- I can car on that told see take the attorney ing attorney. prosecuting came He back and said the (Jack I Williams, all told Jack that was we needed and get car. I have sheriff) go Mr. Mathis did not over with any ac- any court.” Mathis process of kind issued writ or Williams, deputy sheriff to companied Jack whom *4 Mathis did order, went to See’s home. repossession delivered the “stayed deputv go out the road.” The premises the but not testifies, deputy that and See the to the house sheriff went I this said, “Clell hate to 'do car and was there to take the stated he said, it.” “I ‘Jack got I to do have circumstances but under the alright got it but other- papers the to do you you law if have the ” repossession it;’ exhibited the you that Williams then can’t do wise said, necessary I papers. to read the if was “asked me it order and ‘Jack, you take got papers can you If the you law needn’t. ” possession took the deputy sheriff of ear.’ The the it—there sets possession it his who retained it the sheriff ear and delivered to. attorney the sheriff upon demand of See’s days later when until five damages, extent of the nature and The ear to See. released the evidence question appeal this and the any, not a recoverable is annertaining out. is not set thereto “through defendants is whether the pleadings the made The issue right unlawfully, any without forcibly, servants, agents authority” possession or the to do so took the automobile from alleged deny. plaintiff, petition, as which them, plead defendants, answers do or either not admit or that manner, any plaintiff by any took the or in automobile from means the answer lawfully, rightfully peaceably. In that connection or the “by virtue” merely asserts possession it to take “would have been entitled here) say was “a total said car.” there (respondents Defendants properly proof for that reason failure of the demurrer (1) “Th" assert: support they sustained” to this conclusion threatened,” clearly used or evidence showed that no force was either (-Automobile Dis- (2) “The evidence showed that the defendant property.” right take the Corporation) count had an absolute to If it be shows that defendant conceded that the evidence mortgage “would insecurity clause of the car,” to the defendant possession have been entitled take as taking pleads, justify that would not or excuse the defendant or by force, protest, intimidation automobile from over his attempt do not other unlawful or means. Defendants method proposition this with assertion controvert but dismiss it taking evidence “no or threatened” shows force was either used plaintiff. the car from

It Mathis demanded appears from evidence that when automobile, claiming right it under the to take accrued, mortgage, denying plaintiff, terms of such had re che fused to to Mathis and when Mathis de surrender replied you” plaintiff it clared “we will have they go law” “it to “take it couldn’t would have way.” other enlisted sheriff whose thereupon the aid take testimony deputy directed sheriff to effect impression the re the car from under the erroneous possession order, with which which Mathis delivered to the sheriff and armed, legal him with sheriff was invested as sheriff, process legal Certainly the car. order to seize sheriff, acting empower the an officer and did not authorize plaintiff’s shown the manner seize and take the Mathis, refused, upon demand of to sur the evidence. When that Mathis have “to possession of car and stated would render resorting remedy process without to the law” Mathis byit services of the sheriff’s invoked the office afforded the courts accompanied Mathis to home deputy who acts of *5 taking it from were dono the car se’ziner Williams knew that sheriff and well colore officii. acting legal process as such au to be claimed Williams yielded resistance, sup- to what he active See, without thority

911 posed to be the mandate the law. It is laudable in a citizen to yield to what supposes to be the authority lawful of an officer purporting legal to enforce process advantage and he can no lose ;over thereby. having plaintiff’s- protest Defendants taken the car through acting the sheriff colore say cannot be heard to -that officii yielded because to the demand of the sheriff and offered no requiring actual, resistance the use of physical force ear that therefore no taking force was used plaintiff. physical It is true no taking but' force used property the manner shown taking evidence was a amounting coercion and intimidation meaning force within of the law and constituted trespass. constructive force and a civil “To obtain pretense under such show and is to trifle with the of citizens obedience to the law and its officers.” 705; Mortgages, J. 560; Chattel sec. 11 C. v. ’[Jones Bordeaux Co., 556; Firebaugh Hartman 115 App. Mo. Gunther, v. 106 Okla. 460; 233 415; Pac. v. 51 Cochram, Thornton Ala. McClure v. Hill, 268; Annotation, Ark. p. A. L. R. 26.] We think record discloses substantial support evidence to allegations petition “through agents that the forcibly, unlawfully authority” and servants and without took the automobile from trial court erred sustaining defendants’ motions directed verdicts and in over- ruling plaintiff’s involuntary motion to set aside-the nonsuit. judgment of the circuit court is reversed and the cause re- Sturgis Hyde, CC.; concur.'

manded. adopt- foregoing opinion'by FekgusoN, C., PER CURIAM: The judges opinion ed All of the concur. the court. Cantley, Commissioner v. S. L. Appellant, County, Missouri,

Boone Charge Missouri, of Finance of Bank of Centralia. (2d)

51 W. 56. S. One, 13, 1932.

Division June