Boyer v. Church, 38588
| Decision Date | 31 October 1978 |
| Docket Number | No. 38588,38588 |
| Citation | 573 S.W.2d 444 |
| Parties | Wavalene Rana BOYER, now Williamson, Respondent, v. Larry CHURCH, Administrator of the Estate of John H. Boyer, Deceased and Margaret Boyer and James Boyer, Appellants. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Evans & Dixon, Jeffry S. Thomsen, Marilyn R. Koch, St. Louis, for boyer.
Pannell, Dodson & Robinson, Festus, for Church.
Jack C. Stewart, Mark T. Stoll, Richeson, Robert, Wegmann, Gasaway, Stewart & Schneider, Hillsboro, for respondent.
Upon application of plaintiff the trial court set aside a previously entered default judgment against plaintiff and defendants have appealed. We affirm.
John H. Boyer and Margaret F. Boyer were the owners by the entirety of two parcels of land in Jefferson County. On July 6, 1972 they transferred one of the parcels to James W. Boyer (their son) and Wavelene R. Boyer, his wife. On March 5, 1973 they transferred the other tract to the same grantees. Both transfers were by warranty deed and each was for a nominal consideration.
In 1973 John H. Boyer was adjudicated to be mentally incompetent, and on March 15, 1974 his guardian filed suit against James W. Boyer and Wavelene R. Boyer to set aside the two deeds.
In October 1973 James filed suit for divorce and Wavelene moved out of the house in which she had been living with James and established her residence in an apartment in Festus, Missouri and obtained employment. The attorney for the guardian of John H. Boyer requested by letter to the circuit clerk that in the suit to set aside the two deeds James be served at Route 1, Box 471, Festus, Missouri, which was the home of his parents and where he and Wavelene had lived prior to their separation, and that Wavelene be served at 1010 North Third Street, Festus, Missouri, which was the apartment where she had resided subsequent to the separation. However, on the summons to Wavelene the address there typed was Route 1, Box 471, Festus, Missouri. The record does not disclose at whose direction this was done. On March 21, 1974, a deputy sheriff delivered the summons addressed to Wavelene and also the summons addressed to James to Margaret Boyer, James' mother, at the address typed on each summons. A return was made on the summons directed to Wavelene that it had been served by leaving a copy at her "usual place of abode with a member of the family who is over the age of 15 years: to-wit, Mrs. John H. Boyer."
James filed an answer in which he admitted that at the time John H. Boyer executed the two deeds "he was wholly incompetent in that he was without mental capacity to understand the nature of his business or to know the extent of his property * * *." Wavelene did not appear and on July 18, 1974, the court entered a judgment on the pleadings against James and a default judgment against Wavelene, and adjudged the two deeds to be void because at the time of the execution of the deeds James H. Boyer was "without mental capacity" and was suffering from advanced and progressive senility.
Although Wavelene had been properly served in the divorce action brought by James, she defaulted and on October 2, 1974, the court entered a finding that the marriage was irretrievably broken. It caused notice of such finding to be sent to her as required by the then provisions of § 452.320 RSMo 1969. This notice caused Wavelene to investigate what had happened to the property and she then learned for the first time that a default judgment had been entered against her and that the court had set aside the two deeds. (She also requested and obtained the restoration of her maiden name of Williamson.) Wavelene then filed this suit to set aside the default judgment, and after a trial before the court at which the defendants (appellants on this appeal) presented no evidence, the court entered judgment setting aside the default judgment previously entered against Wavelene. No findings of fact were made, none being requested, so we consider that the trial court found the facts in accord with its judgment. Our review is governed by Rule 73.01, and we are to sustain the judgment of the lower court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).
In each of their three points presented on this appeal defendants-appellant assert for the reasons there set forth that the trial court erred in failing to sustain their motion for a directed verdict. Such motion has no place in a court tried case. The issue is for which party should the judgment be entered; not whether a submissible case was made.
Appellants contend that the judgment that was entered is erroneous because it is "not supported by substantial evidence that (they) procured the...
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...through accident or mistake as readily as when there has been fraud in the concoction or procurement of a judgment. Boyer v. Church, 573 S.W.2d 444, 447 (Mo.App.1978) and cases there cited. Callaway's allegations suffice at the very least to show accident and mistake which would warrant set......
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