Byers v. Jacobs

• Citation: 164 Mo. 141,64 S.W. 156
• Parties: BYERS et al. v. JACOBS et al.
• Decision Date: 28 June 1901
• Court: Missouri Supreme Court

64 S.W. 156

164 Mo. 141

BYERS et al. v. JACOBS et al.

Supreme Court of Missouri, Division No. 2.

June 28, 1901.

STRIKING OUT ANSWER — MERITORIOUS DEFENSE — ESTOPPEL — DEATH OF NOMINAL PLAINTIFF.

1. There is no error in striking out answer filed without leave after expiration of the statutory period, defendants not showing a meritorious defense, and their affidavit showing only that their attorney had not entirely recovered from a sickness at the time answer should have been filed, and not showing when he was employed, or that he was unable, after being employed, to prepare an answer, or ask for an extension of time, and plaintiff's affidavit showing that such attorney was in the court room during the days it should have been filed.

2. A mere denial of the allegations in plaintiff's petition is not a showing of meritorious defense to convict the court of error in striking out defendant's answer, filed after expiration of the statutory period, without leave.

3. Where petition to set aside a sheriff's deed in partition to defendant alleges that he deterred others from bidding at the sale by representing that he was bidding for plaintiff, and that, though he was plaintiff's agent, and bought the property for her, he refused to turn it over to her, and the petition tenders the amount paid by defendant, the plea that plaintiff received the money arising from the bid fails to show an estoppel by not alleging that plaintiff received her share of the proceeds with knowledge of his conduct.

4. There is no error in failure to bring in the representatives of a nominal plaintiff, the husband of the plaintiff in interest, on his death.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action by James Byers and another against James Jacobs and another. Judgment for plaintiffs. Defendants appeal. Affirmed.

Wm. R. Gentry, for appellants. E. W. Hinton and Webster Gordon, for respondents.

GANTT, J.

This is an appeal from a decree in the Boone circuit court in a suit in equity to have a sheriff's deed in partition set aside and canceled on the ground that the purchaser, the defendant James Jacobs, at the sheriff's sale, represented to others present that he was bidding on the property (certain real estate in Columbia) for the plaintiff, and that his acts and words deterred others from bidding on the same; that he was her agent, and bought the property in for plaintiff Fannie Byers, but refused to turn it over to her, and afterwards conveyed it to defendant Jane Logan, who had full notice of the fraud. The petition tendered into court the amount paid by defendant Jacobs for the land, together with legal interest, and prayed that the defendants be charged as trustees. The defendants filed no answer within the three days allowed by statute, but, some five days after the time for answering had expired, the defendants, without asking or obtaining leave for that purpose, filed an answer in these words: "Now, on this day come the defendants herein, and for their joint and several answer to plaintiff's petition filed say that they deny each and every allegation and averment in said petition contained. And for their other and further answer defendants say that heretofore, to wit, on the ____ day of March, 1896, the plaintiff's instituted a suit in the circuit court of Boone county, Missouri, for the partition of the...