Johnson v. Hutchinson

SMITH, P. J. This is an action of replevin which was brought before a justice of the peace to recover the possession of “one red and white spotted cow, about four years old, and one red cow four years old, white on belly and end of tail.” The cause went to the circuit court where the plaintiff had judgment and the defendant appealed. The record discloses that by agreement of parties the cause was tried before the Hon John Butler, special judge. The defendant, rafter the trial of the cause, before the special judge agreed upon, had resulted adversely to him, presented his bill of exceptions to said special judge to be allowed, signed and sealed by him and which was done accordingly. It is true the statute requires that whenever a temporary judge shall be elected that an entry thereof shall be made on the records of the court, together with the reasons therefor. Revised Statutes, section 3329. Whether or not any such entry was made on the record in the present case does not affirmatively appear. The abstract shows no more in respect to the election of the special judge than has already been stated. The court over which he was elected to preside was one of general jurisdiction, and every presumption must be indulged in favor of the regularity of its proceedings. Omnia praesumuntur rite et solemnitur esse acta, donee probitur in contrarium. Schell v. Leland, 45 Mo. 289. No reason is seen why we may not presume the order, required by the section of the statute just referred to, was not made in respect to the election of the special judge who tried the present case. It has been decided that where the record of a court of general jurisdiction shows that it ¿ssumed to exercise juris [303] diction over a person or subject-matter, in tbe absence or silence of the record as to any fact showing acquisition of jurisdiction, or bow it was acquired, then jurisdiction is presumed. Huxley v. Harrold, 62 Mo. 516; Gates v. Tusten, 89 Mo. 13; Adams v. Cowles, 95 Mo. 501; Hamer v. Cook, 118 Mo. 476. We can not infer, as tbe defendant would fain have us do, that because tbe abstract is silent as to tbe entry required by said section 3329 it was not made and therefore tbe special judge bad no jurisdiction to try and determine tbe cause. Nothing is seen in Bank v. Graham, 147 Mo. 250, that is at variance with tbe foregoing. . At tbe trial tbe plaintiff was permitted, over tbe objection of tbe defendant, to give in evidence a chattel mortgage executed to him by one Sevier on “three cows, two three years old and one two years old.” Tbe mortgage provided that if tbe mortgagor removed or attempted to remove tbe property from Putnam or Sullivan counties that tbe mortgagee could take tbe same in bis possession. It was acknowledged before a justice of tbe peace of Putnam county and duly recorded in that county. One of tbe grounds of objection to tbe introduction of it in evidence was that the description was insufficient. As between tbe mortgagee and tbe mortgagor tbe description, though imperfect, is, we think, sufficient. Tbe general rule is that, tbe descriptions of personal property in a chattel mortgage, where tbe possession is retained by the mortgagor, will be regarded as sufficient if it is such as to enable third parties, aided by inquiries which it suggests, to identify tbe property. Stonebraker v. Ford, 81 Mo. 532; Chandler v. West, 37 Mo. App. 631; Bank v. Metcalf, 29 Mo. App. 334; Holmes v. Com. Co., 81 Mo. App. 97. But where tbe mortgaged property has passed into tbe possession of a third person with actual notice of tbe mortgage, then tbe rule just adverted to is without application for, in that case, such third person stands in tbe shoes of tbe mortgagor and bis [304] rights in respect to the mortgaged property as against the mortgagee are not different from those of the mortgagor. Furniture Co. v. Davis, 16 Mo. App. 513; Bank v. Bank, 50 Mo. App. 92; Dodson v. Dedman, 61 Mo. App. 209; Johnson v. Jeffries, 30 Mo. 423. And this was the view which the defendant took of the law of the case as it appears from his third and fourth instructions, which were given at his request. The defendant objected to the introduction of the mortgage on the further ground that it failed to show the location of the property, or in whose possession it was to remain until default. From the recitals in the mortgage it is clear that the property was to remain in possession of the mortgagor in Putnam or Sullivan county until default. If he removed or attempted to remove it from either of the said counties'the mortgagee was thereby authorized to take it into his possession. The fact that the mortgage was acknowledged before a justice of the peace in Putnam county and recorded in that county together with the further fact that the note described in the mortgage was made payable at Xenia, a town in that county ■ — a fact of which we will take judicial notice, State v. Pennington, 124 Mo. 388 — 'are sufficient to warrant the inference that the mortgaged property was located in that county, though the mortgagee had the right to remove it into Sullivan county, and that the mortgagor resided there. The first and perhaps the second of the defendant’s objections to the introduction of the mortgage were primarily fatal, but they were obviated by the evidence thereafter adduced which tended to prove that when the defendant purchased the property he had actual notice that it was encumbered by the plaintiff’s mortgage. The theory of the instructions of both the plaintiff and defendant was that if the defendant purchased the property in dispute with actual notice that the same was subject to the plaintiff’s mortgage, then the plaintiff was entitled to [305] recover. The case having been submitted to the jury by both parties on that theory the verdict must be held conclusive. The judgment will accordingly be affirmed. All concur.