Baker v. Lamar
| Decision Date | 07 May 1940 |
| Docket Number | 36527 |
| Citation | 140 S.W.2d 31 |
| Parties | BAKER v. LAMAR |
| Court | Missouri Supreme Court |
Frank L. Pulley, of Cameron, and James H. Hull, of Platte City, for appellant.
A.D Gresham and Jay B. Wilson, both of Platte City, and Walter J Gresham, of Kansas City, for respondent.
HYDE and BRADLEY, CC., concur.
DALTON, Commissioner.
This is an action to quiet title to certain real estate in Dearborn, Platte County, Missouri. After an answer, a cross-petition, and a reply were filed, the defendant filed a motion for judgment on the pleadings. Upon a hearing on the motion the court found that defendant was entitled to judgment on the pleadings, and thereupon, entered judgment against plaintiff on her petition, for defendant on the cross-petition, and quieted title in defendant. A motion for a new trial and a motion in arrest of judgment were filed by plaintiff and overruled by the court and plaintiff has appealed.
The amended petition in one count states that plaintiff is the owner in fee simple of the real estate described; that defendant claims some title, estate or interest therein, the nature and character of which is unknown to plaintiff and cannot be described, except that said claim is adverse and prejudicial to plaintiff; and that defendant has no right, title or interest therein. Plaintiff prays the court to try, ascertain and determine title and adjudge plaintiff the owner and entitled to possession.
The answer, as amended by the addition of a cross-petition, denies that plaintiff is the owner of the premises described, and alleges that defendant is the owner and in possession thereof.
It is further alleged that if plaintiff claims under a certain deed dated October 14, 1935, wherein she is named as grantee, said deed was obtained by the false and fraudulent representations of her husband, who made certain representations knowing them to be false, intending to deceive defendant; that defendant believed the representations and was deceived thereby into making said deed to plaintiff and her husband; and that the deed is void and without consideration. It is alleged that the deed was held void and was cancelled by the court in a certain suit between defendant and plaintiff's husband. Defendant then pleaded said judgment as res adjudicata and binding on plaintiff.
Defendant in his cross-petition, for his cause of action against plaintiff, refers to the allegations in his answer, states that plaintiff has no interest in the real estate; that plaintiff's claim constitutes a cloud on defendant's title; and 'asks the court to quiet his title against plaintiff and to adjudge that plaintiff * * * be forever enjoined and restrained from asserting any right, title or claim' to the real estate described and for general relief.
Plaintiff for reply denies each and every allegation of defendant's answer, 'except such as are hereinafter admitted.' This is followed by specific denials of the fraud allegations. Plaintiff then alleges that the deed was given by defendant to plaintiff and her husband (now deceased) without fraud and for a valuable consideration; that the consideration was property of the value of $ 2,000, which was conveyed to defendant; that plaintiff was not a party to the suit against her husband and is not bound thereby; that service on her husband in said suit was fraudulent; that plaintiff and her husband resided in Caldwell County, Missouri, and owned a 200 acre farm there; that they resided there at the time defendant got service by publication on her husband; that the publication was based upon an affidavit that her husband had absented himself from his usual place of abode in Missouri and had located in Wyoming where the usual and ordinary process could not be served upon him. Plaintiff alleged that the affidavit was false and known to be false and was a fraud on the court; that neither she nor her husband knew of the suit while it was pending in Platte County; that service was obtained by publication knowing that they would not likely hear of it; that the allegations in the petition in said suit were untrue; and that defendant therein, plaintiff's husband, had a good and meritorious defense thereto. Plaintiff then asked judgment in accordance with the prayer of her petition.
Upon the filing of this reply, defendant moved for judgment on the pleadings. The grounds stated in the motion are (1) that plaintiff's petition and reply state no cause of action as against defendant's answer; (2) that the reply admits the existence of the judgment pleaded in the answer; (3) that the judgment is binding on plaintiff as plaintiff is in privity with her husband; and (4) that the reply presents nothing for determination in the case, and that it is, in effect and purpose, a collateral attack upon a judgment which is regular and valid on its face.
The court found that defendant was entitled to judgment on the pleadings. The judgment, as entered, recites that the pleadings, record and judgment in the former case referred to in the answer and reply 'were presented and exhibited to the court,' and that at the hearing on the said motion it was admitted by plaintiff's counsel that plaintiff and her husband were visiting in Wyoming on February 24, 1937, and, before and after that date, were absent from their home in Davies County. (This date is not mentioned in the pleadings, but from the argument we infer it is the date of the affidavit referred to.) It is then ordered 'that plaintiff take nothing by her petition against defendant, and that defendant, have and recover judgment against plaintiff upon her petition and upon defendant's cross-petition' and that title to the described real estate be quieted in defendant.
Error is assigned upon the court's action in ruling the motion, it being contended by appellant that the petition states a cause of action; that this action is not a collateral attack on a judgment; and that plaintiff was not a party to the suit referred to or bound by the judgment therein.
Respondent contends that the reply admits that appellant's claim rests upon a deed which has been cancelled by a judgment of the court; that upon the facts, admitted at the hearing on the motion, there was no fraud in obtaining the judgment; that the issues in this cause are identical with the prior suit; and that appellant is bound by the judgment thereon to which she was in privity. Respondent further says that appellant's bill of exceptions and abstract of the record failed to show vital parts of the record before the trial court. Respondent refers to evidence mentioned in the judgment, to wit, the pleadings, records and judgment in the case against appellant's husband, and to the admission of fact, referred to by the court, about plaintiff and her husband being absent from the state. Respondent relies on said admission to establish that there was no fraud in making the affidavit and securing the former judgment.
In view of the contentions made, it becomes necessary to consider the nature and purpose of a motion for judgment on the pleadings. A motion for judgment on the pleadings, like a demurrer to a pleading, admits, for the purpose of the motion, all facts well pleaded but not mere conclusions. State ex rel. Smith v. Joynt, Mo.Sup., 127 S.W.2d 708, 709; Ryan v. City of Warrensburg, 342 Mo. 761, 769, 117 S.W.2d 303, 306. Such a motion will lie only when, from the face of the pleadings, the moving party is entitled to judgment as a matter of law. It raises only an issue of law. Sullivan v. Bank of Harrisonville, Mo.Sup., 293 S.W. 129, 131; State ex rel. Smith v. Joynt, supra; Houts, Missouri Pleading and Practice, Vol. 1, § 124, p. 250. No evidence may be heard on the motion. Cammann v. Edwards, 340 Mo. 1, 9, 100 S.W.2d 846. If an issue of fact is presented by the pleadings the motion should be denied. Sullivan v. Bank of Harrisonville, supra. It is apparent that the pleadings create issues of fact which can only be determined upon a consideration of evidence.
The petition states a cause of action under section 1520, R.S. 1929, Mo.St.Ann. § 1520, p. 1682. A cause of action under said section may either be at law or in equity in accordance with the facts stated and the character of the relief sought. Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81, 84. Since no facts are stated which would make the cause one in equity, and since no affirmative equitable relief is asked, the cause of action is at law. The petition states that plaintiff is the owner and that defendant claims adversely to plaintiff. The answer denies that plaintiff is the owner and alleges that defendant is the owner. An issue of fact is made.
It is suggested that plaintiff's petition constitutes a direct attack upon the judgment referred to. No such attack is made. The judgment is not mentioned in the petition. No facts concerning it or its procurement are set out. No facts constituting fraud are pleaded. No other grounds for avoiding the judgment are set forth. Plaintiff does not ask any affirmative equitable relief nor seek to set aside any judgment. The relief sought is a...
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