Chance v. Franke

• Decision Date: 25 July 1941
• Docket Number: 37181
• Parties: Lawrence Edward Chance and Erma M. Chance, Appellants, v. Myrtle Franke
• Court: Missouri Supreme Court

153 S.W.2d 378

348 Mo. 402

Lawrence Edward Chance and Erma M. Chance, Appellants, v. Myrtle Franke

No. 37181

Supreme Court of Missouri

July 25, 1941

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Reversed and remanded (with directions).

Dubinsky & Duggan for appellants.

There can be no denial of courts of justice to any person. Sec. 10 Art. II, Mo. Const. Defendant must answer or demur to plaintiffs' petition. Sec. 768, R. S. 1929; Colley v Jasper County, 85 S.W.2d 57.

W. Donald Dubail, Walter Lambert, Oliver F. Erbs and Leonard C. Jacobs for respondent.

(1) Jurisdiction of subject matter may be raised at any stage of the case, in any court, either by court or by counsel. Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108, 214 Mo. 685; Dahlin v. Mo. Commission for the Blind, 262 S.W. 420. (2) A decree entered in an equitable mechanic's lien suit against a party defendant duly served with process and who fails to prosecute an appeal therefrom is res adjudicata as to all issues raised therein and cannot thereafter be collaterally attacked in a subsequent suit. R. S. 1929, secs. 3180-3186; Bank v. Poole, 160 Mo.App. 133; Mellier v. Bartlett, 89 Mo. 134; Pettus v. Elgin, 11 Mo. 263; State ex rel. v. Riley, 127 Mo.App. 469; Kinealy v. Staed, 55 Mo.App. 176; Dezino v. Drozda Realty Co., 13 S.W.2d 659; Badger Lbr. Co. v. Robertson, 297 S.W. 99, 222 Mo.App. 211; Richards Brick Co. v. Wright, 82 S.W.2d 274; Macklind Inv. Co. v. Ferry, 341 Mo. 493, 108 S.W.2d 21. (3) A division of the Circuit Court of St. Louis County, when a cause is assigned to it, becomes as to that cause a whole court, and has exclusive jurisdiction over the subject matter of the litigation. Goddard v. Delaney, 181 Mo. 581, 80 S.W. 886; State ex rel. v. Eggers, 152 Mo. 485, 54 S.W. 498; Voullaire v. Voullaire, 45 Mo. 602; Haehl v. Wabash Railroad Co., 119 Mo. 325, 24 S.W. 737; Macklind Inv. Co. v. Ferry, 341 Mo. 493, 108 S.W.2d 21. (4) The motion to dismiss filed in this case was the only proper method of attacking appellants' petition prior to trial of the cause on its merits. Railroad Co. v. Knudson, 62 Mo. 569; Richards Brick Co. v. Wright, 82 S.W.2d 274; Macklind Inv. Co. v. Ferry, 341 Mo. 493, 108 S.W.2d 21.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

On September 15, 1939, Lawrence Edward Chance and Erma M. Chance, as husband and wife, instituted an action against Myrtle Franke to quiet title to certain described real estate in St. Louis County, Missouri, and for other relief. Among other things, the petition alleged that on October 4, 1930, a suit entitled Mutual Press Brick & Quarry Company, a corporation, v. Eugene Tomaselli et al., had been instituted "for the foreclosure of a pretended mechanic's lien;" that on October 24, 1938, "a judgment and decree was rendered in said cause," purporting to establish various liens against the real estate described in plaintiffs' petition, and after a pretended sale under said judgment and decree, the sheriff of St. Louis County, by his deed dated August 23, 1939, purported to convey the title to said real estate to defendant; that said judgment and decree, in so far as it purports to affect the plaintiffs and their title to said real estate, is null and void because, among other reasons sufficient for this review, plaintiffs were never made parties to said cause, were never served with process therein, or given notice thereof, and did not appear therein. The petition further alleged that defendant claimed exclusive ownership of said real estate and threatened, by means of a writ of assistance, to eject and oust plaintiffs. The prayer asked for a determination of the title; that defendant be restrained from taking action to enforce said alleged void judgment and from ejecting plaintiffs; that said judgment be held null and void as to plaintiffs and their interests in said real estate and that said sheriff's deed be cancelled.

Plaintiffs' action was returnable to the January Term, 1940, of the Circuit Court of St. Louis County. On December 8, 1939, the court sustained defendant's "motion to dismiss" and rendered judgment conforming thereto. Plaintiffs appeal and assert error in the court's entertaining and sustaining the motion.

The grounds of defendant's motion were: (1) that the court had no jurisdiction over the issues; (2) that Mutual Press Brick & Quarry Company v. Eugene Tomaselli was an equitable mechanic's lien case and was pending in Division No. Two of the court; (3) that plaintiff Lawrence Edward Chance appeared in said mechanic's lien suit and filed a motion for new trial therein, which was overruled on January 30, 1939, and no appeal was taken, and (4) that the petition did not state a cause of action.

The Circuit Court of St. Louis County consists of four divisions. [Sec. 2309 et seq., R. S. 1939.] The equitable mechanic's lien suit was assigned to Division No. 2, whereas the instant action was assigned to Division No. 4. Defendant says that one division of the Circuit Court of St. Louis County may not interfere with the process of another, citing Voullaire v. Voullaire, 45 Mo. 602, 607, 608; Haehl v. Wabash Ry. Co., 119 Mo. 325, 337, 24 S.W. 737, 739, involving, respectively, actions on a motion for a new trial and an application for a special jury by divisions of a circuit court not having the case for trial. They differ materially from the instant situation. Here we have an action to quiet title and, as an incident thereto, relief from an alleged void judgment rendered by the court in which the quiet title action was instituted. Section 1665, R. S. 1939, Mo. Stat. Ann., p. 1660, Sec. 1501, authorizes "proceedings on an injunction to stay a suit or judgment . . . in the county where the judgment was rendered or the suit is pending . . ." Goddard v. Delaney (Banc), 181 Mo. 564, 581(IV), 80 S.W. 886, 891(4), cited by defendant, while recognizing the proper application of the principle announced in the Voullaire case, said: "But when a suit is ended, final judgment entered and all proceedings therein have ceased, the record in the cause belongs to the whole court. In such cases when, after final judgment, proceedings like the prosecution of a writ of scire facias arise, we perceive no reason why the cause, for that purpose, should not be assigned in the due course of the practice established by the rules of court to any division of the court whether it be the one in which the judgment was originally entered or not." Whether the alleged void judgment had the attributes of a final judgment is considered under the next point.

Defendant, on the theory the equitable mechanic's lien statutes contemplate that the rights of all parties interested in the real estate be determined in the statutory equitable action when applicable, asserts the motion to dismiss was proper. Defendant states that all parties having any right, title or interest in the real estate may have that determined in the equitable mechanic's lien action (Sec. 3570, R. S. 1939, Mo. Stat. Ann., p. 5008, Sec. 3180); that, after filing of such equitable action, it is exclusive of all other suits and the rights of all shall be adjudicated in the equitable action (Secs. 3573, 3576, R. S. 1939, Mo. Stat. Ann., pp. 5012, 5014, Secs. 3183, 3186); and that all whose rights are not disclosed at the time of the filing of the equitable action are bound by the judgment therein, "but any such person shall be entitled upon application to the court to be made a party to said action at any time before final disposition by the final judgment of the court therein of the proceeds of said property and shall be entitled according to their respective rights to participate in the proceeds of the sale . . ." (quoting, Sec. 3571, R. S. 1939, Mo. Stat. Ann., p. 5010, Sec. 3181). With respect to the allegations in plaintiffs' petition, it is deserving of mention that owners disclosed by the proper public record, under said Sec. 3571, "shall be made parties to said action." Defendant stresses Macklind Inv. Co. v. Ferry (Div. I), 341 Mo. 493, 498[4], 108 S.W.2d 21, 23[6, 7]; and mentions Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274.

Plaintiffs' petition charged that a void judgment was in existence.

We note the observations in the Macklind Investment Company case to the effect that said plaintiff filed his petition three days before the sale, sought to be enjoined, under the equitable mechanic's lien judgment and that "the judgment in the lien suit was not final, but was awaiting the report of sale by the special commissioner." This observation was dictum as it appears the parties in said case treated the motion to dismiss as an answer; and it is to be noted, among other things, that the Macklind Investment Company "was a party defendant" in the equitable mechanic's lien action and the issue here insisted upon appears to have been not presented there. State ex rel. Maple v. Mulloy (Div. I), 322 Mo. 281, 287, 15 S.W.2d 809, 812[2], holding, after reasoning the issue and in order to reach a determination, a judgment such as is disclosed by the proof dehors the record in the instant case to be a final judgment determining all...