Paragould Wholesale Grocery Co. v. Middleton

235 S.W. 469, 208 Mo. App. 592, 1921 Mo. App. LEXIS 132

• Court: Missouri Court of Appeals
• Decided: December 5, 1921
• Status: Published

Opinion

FARRINGTON, J.

— The plaintiff, a creditor of W. C. Middleton, attached an automobile truck which he ■had been using in his business. W. G. Middleton, father of defendant W. O. Middleton, filed an interplea claiming the full ownership of the truck and the jury returned a verdict for the interpleader. Judgment was entered accordingly, and it is from this judgment that plaintiff appeals.

The view we take of this case requires a reversal of the judgment. We will, therefore, state the evidence most favorable to the interpleader. It is his claim that he and his son purchased this automobile truck and owned it jointly for some time, then he claims to have purchased his son’s interest prior to the date of the attachment. The case was tried out on the part of the interpleader on the theory that he was the sole owner of this property and was entitled to it and to its possession; the plaintiff contending that' the property was entirely that of the defendant, W. C. Middleton, and that the claim made by W. Gr. Middleton, the interpleader, was fraudulent. As stated before, the jury found that the truck belonged to the interpleader, W. Gr. Middleton. The evidence of the interpleader defeats his claim as to entire ownership of this truck, as he claims to have purchased the interest of his son and admits that there was no compliance with the requirements of section 7561, Revised Statutes of Missouri 1919. A certificate of registration was issued to the son, W. C. Middleton, to.operate this truck, and it is admitted that at the time the interpleader claims to have purchased his son’s interest no notice was given or fee paid to the Secretary of State. The statute in express language declares that “any sale or transfer of such motor vehicle without complying with the provision of this section shall be fraudulent and void, ’ ’ the section then providing penalties for failure to comply.

We have found no construction of this provision of the statute, but to hold that the alleged sale claimed to have been made by the interpleader was a valid sale would be in direct conflict with the express provisions of the statute. We must therefore hold'that the judgment of the court declaring ownership in W. U. Middleton to this automobile truck is erroneous, and the cause must be remanded. If on a retrial the interpleader desires to set up a special interest in the truck, that is a half interest therein by reason of the original purchase, he should be permitted to do so, and in that case the issue would be tried out on whether the interpleader had a special interest or none at all. No judgment for a special interest could have been rendered in the cause as it was tried, as the same would not have been responsive to the pleadings. [See Nelson Distilling Co. v. Hubbard, 53 Mo. App. 23. See, also, as to procedure where interpleader claims special interest, Urquhart v. Sears, Roebuck Co., 227 S. W. l. c. 882.]

Some question is raised about the admittance of certain evidence. We find that the court did permit witnesses to make answers to questions clearly calling for a conclusion. On a retrial this will doubtless be'eliminated.

We think that the court ruled correctly excluding testimony concerning the goods found in the home of W. G-. Middleton after a fire had consumed the store of W. C. Middleton, as that would not tend to prove the issue involved in this case. We further find against the appellant on the claim that there should be a verdict directed for plaintiff on the ground that the property had not sufficiently changed hands. This, under the facts of the case, becomes a jury question and it was properly submitted in the instructions. For the reasons heretofore given, the judgment is reversed and the cause remanded.

Cox, P. J., and Bradley, J., concur.