Byous v. Lawshee, 55692
| Decision Date | 10 January 1972 |
| Docket Number | No. 55692,No. 1,55692,1 |
| Citation | 475 S.W.2d 47 |
| Parties | Lulu Mae BYOUS, Respondent, v. Joel LAWSHEE, Appellant |
| Court | Missouri Supreme Court |
Joseph S. McDuffie, St. Louis, for respondent.
Sanford Goffstein, Rodney Weiss, Rosenberg, Weiss, Goffstein & Kraus, St. Louis, for appellant.
HOUSER, Commissioner.
This is a suit in two counts. Count I is an action to set aside a warranty deed on the ground of fraud, to adjudge the title to the real estate to be in plaintiff and for the recovery of $10,000 actual and $10,000 punitive damages. Count II is an action to require defendant to make an accounting of rents on the same property 'collected and paid out' from May, 1963, alleged to be in excess of $6,760; to collect 'any balance,' and for $1,000 for waste committed on the premises. Defendant denied generally, pleaded laches affirmatively, and sought dismissal of both counts and an award of reasonable attorney's fees.
When the cause came on for trial before the court sitting without a jury the following transpired:
'MR. McDUFFIE (counsel for plaintiff): At this time the Court said you would hear evidence on the question of whether or not the accounting would be called for in this case.
'THE COURT: That is right.
'MR. McDUFFIE: Now, with subsequent matters affecting the merits will be gone into later on if the accounting should be had.
'THE COURT: Yes, after we get the accounting in, if you are entitled to an accounting.
'MR. McDUFFIE: The question was, will the merits otherwise touching this be gone into at a later date, and by going into the question of accounting at this time would not waive testimony in another matter.
'THE COURT: Not a thing will be waived, no.'
After hearing evidence on the issues of fraud and laches the court on December 23, 1969 entered a general judgment (without reference to the two counts of plaintiff's petition) finding against defendant on the issues of fraud and laches; cancelled the warranty deed; adjudged the title in plaintiff; found that plaintiff was entitled to an accounting of rents, with reimbursement to defendant for money spent in paying off two deeds of trust; and ordered defendant to render a true accounting, and assessed $1,000 actual and $2,000 punitive damages in favor of plaintiff. On January 7, 1970 defendant filed a motion for new trial. On February 24, 1970 the court ordered the motion for new trial 'set aside, vacated and for naught held' and lodged with the clerk of the court, and further ordered that the judgment be 'held in abeyance for an additional thirty (30) days, to permit the defendant to comply with the Court's order, judgment and decree to 'render an accounting of all rents collected and money expended by defendant in the necessary upkeep of said...
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Dalton v. Borger
...the particular judgment as a final judgment for purposes of appeal. Caudle v. Kelley, 545 S.W.2d 427, 429 (Mo.App.1976). In Byous v. Lawshee, 475 S.W.2d 47 (Mo.1972), it was held that, when the trial court did not dispose of a second count and did not designate the judgment a final one, the......
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G.M. Battery & Boat Co. v. L.K.N. Corp., 50110
...of the petition remain undecided. The judgment is not final for purposes of appeal and must therefore be dismissed. Byous v. Lawshee, 475 S.W.2d 47, 48 (Mo.1972); GAA v. Edwards, 626 S.W.2d 685 The appeal is dismissed as premature. CARL R. GAERTNER, P.J., and SMITH, J., concur. ...
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Weaver v. Disabled Am. Veterans, 34790
...matter as plaintiff's individual claims or whether the two claims are entirely separate, independent and unrelated. In Byous v. Lawshee, Mo., 475 S.W.2d 47, 48, plaintiff sued in two Counts; Count I sought to set aside a warranty deed, and Count II sought an accounting of rents. It was held......