Opinion
No. 21672.
May 5, 1952.
APPEAL FROM THE CIRCUIT COURT, LAFAYETTE COUNTY, PHIL H. COOK. J.
Frank F. Catron, Lexington, Mo., for appellant.
Blackwell Sherman, Horace F. Blackwell, D. W. Sherman, Lexington, Mo., for respondents.
This is the second appeal in this case. Since the pleadings and the facts developed at the first trial are fully set out in our opinion on the first appeal, we will state only such facts as we deem necessary for a determination of the questions presented on the second appeal. Our opinion on the first appeal is reported in 239 Mo.App. 578, 194 S.W.2d 540.
The record shows that in January, 1943, Harry Sanders brought an action in replevin against Sydney Brooks and his sister, Clellia Brooks, to secure possession of four hogs. The suit was instituted in a justice of the peace court in Lafayette County, Missouri. No bond was given by plaintiff and the hogs remained in the possession of defendants. The answer of defendants was, in effect, a general denial. A trial before the justice on February 17, 1943, resulted in a judgment in favor of defendants, and plaintiff appealed.
On May 28, 1945, the day of the first trial in the circuit court, plaintiff amended his petition by increasing the alleged value of the hogs and decreasing the amount of damages claimed. On the same day, and before the jury was impaneled, defendant filed an amended answer and plaintiff filed a reply. The answer admitted that plaintiff was the owner of the hogs at the time of the service of summons issued by the justice of the peace; admitted that the hogs were in the possession of the defendants at said time and had not been seized under any process, execution or attachment against the property of plaintiff; but denied that the hogs were wrongfully detained by defendants. Further answering defendants alleged, in substance, that at the time this suit was filed and at the time the case was tried in the justice court on February 17, 1943, defendants had an agister's lien on the hogs; that the four hogs remained in the possession of defendants until July 20, 1943, when "the two large hogs" were taken and sold under an execution issued on a judgment for rent which defendant Clellia Brooks had recovered against plaintiff in another justice of the peace court; that the other two hogs remained in defendants' possession until one died in November, 1943; that "thereafter the remaining small hog continued in the possession of defendants until October, 1944; that defendants' lien for feeding and * * * caring for said hogs amounted to * * * the sum of $133.00; that in October, 1944, defendants sold the remaining small hog * * * for $63.83, and that same was insufficient to compensate defendants for their agister's lien * * *;" that plaintiff had not paid defendants the amount of said lien and therefore was not entitled to maintain his suit in replevin. It is unnecessary to state the contents of plaintiff's reply to the amended answer.
The first trial in the circuit court resulted in a verdict and judgment in favor of defendants, and plaintiff appealed to this court. The judgment was reversed and the cause remanded because "the trial court erred in not submitting to the jury, by proper instructions, the question of whether defendants had an agister's lien and, if so, the amount thereof." 239 Mo.App. loc. cit. 586, 194 S.W.2d loc. cit. 544.
The evidence at the second trial was substantially the same as that introduced at the first trial in the circuit court. As stated, defendants admitted in their amended answer that plaintiff was the owner of the four hogs at the time of the service of the summons in the replevin suit and that the hogs were in the possession of defendants at said time. We do not deem it necessary to state the circumstances under which defendants came into possession of the hogs or to state the evidence relating to the alleged agistment. There was evidence tending to show the value of the feed consumed by the hogs during the time they were in defendants' possession and the value of services rendered in caring for the hogs, and that plaintiff had refused to pay defendants for such feed and care.
The evidence also showed that after plaintiff appealed from the judgment rendered by the justice of the peace on February 17, 1943, but before the first trial in the circuit court, defendant Clellia Brooks sued plaintiff in another justice court for rent allegedly due her, and on April 25, 1943, obtained a judgment for $60 and costs. An execution was issued on this judgment and the constable levied on "the two large hogs" in the possession of defendants. On July 31, 1943, the constable sold the two hogs for $118, and after the judgment was satisfied there remained a balance of $21.62. The constable issued his check for $21.62, payable to plaintiff and his attorneys, and mailed the same to one of the attorneys, but the check was never cashed. The other two hogs remained in the possession of defendants until one died in August, 1943, and the other was sold by defendants in October, 1944 for $63.83. It appears, therefore, that at the time of the first trial in the circuit court, on May 28, 1945, defendants did not have possession of any of the hogs.
At the second trial the parties stipulated that the value of the two hogs sold under the execution was $118, and that the value of the hog sold by defendants was $63.83, or a total value of $181.83.
The court gave defendants' instruction 1, which reads in part as follows: "And although you may find from the evidence that two of the four hogs were sold by a Constable under an execution issued by a Justice of the Peace upon a judgment for rent, and although you may believe from the evidence that one of the two remaining hogs died, still, whatever part of the total amount you may find from the evidence was due the defendants for feeding and caring for all four hogs was unpaid at the time the defendants sold the fourth hog would constitute a lien on the fourth hog would constitute a lien on the fourth hog for the whole amount due for furnishing feed and care for all four hogs, and if the amount received from the sale of the fourth hog was less than the total of the amount which you find was due defendants for feeding and caring for all four hogs, then your verdict will be for the defendants." The court refused to give plaintiff's instruction 5 which told the jury, among other things, that defendants had no right "to have it (the property) taken from them by any legal process of their own instigation or in their own behalf."
The jury returned the following verdict: "We, the jury, find that defendants furnished feed for the four hogs described in the evidence and cared for the same, and that said feed and care was of the value of $133, and we further find that the value of the hog sold by the defendants was $63.83, and inasmuch as the value of the feed and care for the four hogs was in excess of the value of the hog sold by the defendants the plaintiff is not entitled to recover herein and we find the issues for the defendants." The court entered judgment for defendants and plaintiff appealed.
Plaintiff contends that "the trial court committed error in giving defendants' instruction No. 1 * * * and in refusing to give plaintiff's instruction No. 5, thereby preventing the jury from assessing the value of that part of the property sought to be replevined, which has been taken out of defendants' possession by the legal process of one of the defendants, while the case was pending on appeal from the Justice of the peace court to the circuit court."The following appears on page 30 of the plaintiff's brief: "The plaintiff herein in addition to asking the assessment of the two hogs taken under execution, also, asked assessment of the hog that died. * * * However, to enable the Kansas City Court of Appeals to render a final judgment herein, plaintiff waives any further consideration of the hog that died. * * * The defendants must be held to have brought the value of the other three hogs into court in the amount of $181.83. The verdict of the jury was that defendant had a lien for $133.00, the difference is $48.83." Plaintiff says the judgment should be reversed and the cause remanded with directions to enter judgment for plaintiff in the sum of $48.83.
Plaintiff's resourceful counsel has set forth twenty-three abstract statements and has cited more than thirty cases and several texts in support of the above contention. To analyze and discuss all of these cases would require a lengthy opinion, and we do not deem it necessary to so extend the opinion since a careful examination of the cases discloses that they are not controlling here. However, we will consider plaintiff's principal arguments and refer briefly to some of the cases cited.
Plaintiff argues, first, that "in a replevin suit any party to the action is prevented from taking the property made the subject of the action out of the replevin suit * * * by any legal process of his own, or at his own instigation, by the doctrine of Lis Pendens, which requires that the party in possession bring the property, or its value, into court," citing Ex parte Irwin, Mo.Sup., 6 S.W.2d 597; Missouri State Life Ins. Co. v. Russ, Mo.Sup., 214 S.W. 860; Troll v. City of St. Louis, 257 Mo. 626, 168 S.W. 167; Turner v. Edmonston, 210 Mo. 411, 109 S.W. 33; Bristow v. Thackston, 187 Mo. 332, 86 S.W. 94; Jacobs v. Smith, 89 Mo. 673, 2 S.W. 13; Burnham, Munger Co. v. Smith, 82 Mo.App. 35; Carr v. Lewis Coal Co., 15 Mo.App. 551; Mitchell v. Federal Land Bank of St. Louis, 206 Ark. 253, 174 S.W.2d 671; Benson v. Sawyer, 216 Iowa 841, 249 N.W. 424. None of these cases supports plaintiff's argument. "The doctrine of lis pendens applies, as a general rule, to all persons acquiring an interest in the subject of litigation during the pendency thereof, so that one who acquires a right or interest in property pendente lite is as conclusively bound by the result of the litigation as if he had been a party thereto from the outset. This is ordinarily true whether he acquires the property by purchase or otherwise." 54 C.J.S., Lis Pendens, § 42, page 616. The case at bar does not involve the question whether a third person who acquires an interest in property pending litigation in relation thereto takes subject to the rights of the parties to the litigation as finally determined by the judgment, and "the doctrine of lis pendens has no application as between the parties to the action." Id., § 42,
Plaintiff next asserts that where property has been seized under a writ of replevin "the property cannot be sold by the party in possession or levied upon by legal process of either party or their privies," citing Mohr v. Langan, 162 Mo. 474, 63 S.W. 409. In the instant case, plaintiff did not furnish a bond and the hogs were not seized under a writ of replevin. Hence the decision in the Mohr case is not applicable here. See 54 C.J., Replevin, sec. 170, p. 499, citing the Mohr case and other Missouri decisions.
Plaintiff also states that "personal property in the general ownership of one person but in the possession of another claiming some special interest or right to charge the property either presently or in the future, cannot be levied against and sold by one having a judgment against the general owner, pledgor, bailor, or lienee," citing State ex rel. Missouri Poultry Game Co. v. Nolte, Mo.Sup., 203 S.W. 956; Young v. Schofield, 132 Mo. 650, 34 S.W. 497; Sexton v. Monks, 16 Mo. 156; Evens Howard Fire Brick Co. v. Gammon, Mo.App., 204 S.W. 832; Ball v. Peper Cotton Press Co., 141 Mo.App. 26, 121 S.W. 798. We have read these cases and find that they are not in point because ruled on entirely different factual situations.
In support of his position, plaintiff argues "that a defendant cannot use a subsequently acquired claim or judgment to effect a setoff in a pending case, and cannot interject a set-off into a case upon appeal, neither as a counter-claim or set-off of one judgment against another, nor can a personal judgment at any time be used as a set-off against an action in rem for property or its value," citing Sec. 2745, R.S.Mo. 1939, and several Missouri cases. It would serve no useful purpose to discuss this statement since the case before us does not involve a setoff or counterclaim of any kind.
We do not deem it necessary to set forth the other arguments made by plaintiff. It is sufficient to say that they do not support his contention that the court erred in giving defendants' instruction 1 and in refusing to give plaintiff's instruction 5. We have made an independent investigation, but have been unable to find any authority which would warrant us in sustaining plaintiff's contention. We conclude that the judgment should be affirmed.
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.