Chance v. Franke

• Decision Date: 10 November 1942
• Docket Number: No. 37987.,37987.
• Citation: 165 S.W.2d 678
• Parties: CHANCE et al. v. FRANKE.
• Court: Missouri Supreme Court

165 S.W.2d 678

CHANCE et al. v. FRANKE.

No. 37987.

Supreme Court of Missouri, Division No. 1.

November 10, 1942.

Appeal from Circuit Court, St. Louis Division No. 4; John J. Wolfe, Judge.

Action by Lawrence Edward Chance and another against Myrtle Franke to cancel a sheriff's deed and the mechanic's lien judgment on which it was based, to determine title to the land involved, and for injunctive relief. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Orla M. Hill and Jesse L. England, both of Clayton, for appellants.

W. Donald Dubail, Walter Lambert, and Oliver F. Erbs, all of St. Louis, for respondent.

HYDE, Commissioner.

This is an action in equity to cancel a sheriff's deed and the mechanic's lien judgment on which it is based; and also to determine title to the land involved and for injunctive relief. The court found for defendant and entered judgment of dismissal. Plaintiffs have appealed.

The common source of title is Alice Mischlispy. Defendant claims under the sheriff's sale and deed, based on the judgment in a mechanic's lien suit in which Alice Mischlispy's grantees, Albert and Mary Hauser, were made defendants. The mechanic's lien suit was commenced in October 1930, and was an equitable action under Section 3570, R.S.1939, Mo.R.S.A. § 3570. Plaintiffs claim under a deed from Hauser, made to plaintiff L. E. Chance in June 1932, and a deed from Alex Halbman and wife (to whom Hauser, as a widower, conveyed in November 1930), made to L. E. Chance in January 1932. (Plaintiff Erma M. Chance was not a grantee in either deed.) Plaintiffs did not record these deeds until July 13, 1939. The final decree in the mechanic's lien suit was entered during the September 1938 term, and the sale thereunder was held on July 10, 1939. However, in April 1930, Albert and Mary Hauser had conveyed the property to Willard S. and Ida M. Layne. Halbman and the Laynes were also parties to the mechanic's lien suit.

Plaintiffs' claim is that the judgment in the mechanic's lien suit was absolutely void because neither the lien statement nor the petition therein described the land covered by the decree and conveyed by the sheriff's deed; and also because plaintiffs were never made parties or served with summons or given notice and did not enter their appearance. Plaintiffs' petition was before this court in Chance v. Franke, 348 Mo. 402, 153 S.W.2d 378, 380, to which reference is made for further information as to its allegations. That was an appeal from a judgment dismissing plaintiffs' petition in this case. This court said (on that appeal) that "plaintiffs' petition charged that a void judgment was in existence"; that "no issue involving the sufficiency of plaintiffs' petition was presented nisi or here"; and that the trial court erred in dismissing the petition on the ground that the mechanic's lien suit was res adjudicata of plaintiffs' title claims when this matter did not appear from plaintiffs' petition but "by the proof dehors the record proper." This court ruled (on that appeal) that "the plea of res judicata has been held a defense to be affirmatively pleaded"; and that plaintiffs were entitled to go to trial on the facts alleged. In other words, our practice does not recognize a speaking demurrer. See Halloran v. Hackmann, Mo.Sup., 160 S.W. 2d 769. Therefore, this court reversed the judgment of dismissal on the petition, and remanded the case for a trial on the merits on such defenses as might be stated by answer.

Thereafter, defendant filed an answer which did state the defense of res adjudicata. Defendant showed at the trial that plaintiff L. E. Chance was actually a party to the mechanic's lien suit under the name of Leo Chance (as hereinafter set out) so that this alleged ground of invalidity of the judgment was not sustained. Plaintiffs now make several assignments of error concerning irregularities in the decree in the mechanic's lien suit, such as that one of the corporate defendants had forfeited its charter prior to judgment and the petition was not amended as was required by Section 3571, R.S.1939, Mo.R.S.A. § 3571; that the decree did not dispose of issues relating to one individual defendant; and that defendant herein, who was the purchaser at the sale under the mechanic's lien judgment, was only a straw party and was not the real party in interest. However, defendant's plea of res adjudicata is good as to these defenses for two reasons. First: All parties, who were owners "disclosed by the proper public records," when the equitable mechanic's lien suit was filed, were made parties thereto; and the petition also included all unknown parties who claimed or might claim under the record owners and notice by publication was given to them. Section 3571, R.S.1939; see, also, Uhrig v. Hill-Behan Lumber Co., 341 Mo. 851, 110 S.W.2d 412. Second: The evidence in this case discloses that plaintiff L. E. Chance was later made a party by cross bill and actually served with summons although he was misnamed "Leo" Chance; and that he did employ counsel, file a motion for new trial immediately after the decree was entered, and thereafter attacked the validity of the sale to defendant herein by further proceedings in the original case. He appealed from the action of the circuit court sustaining the validity of the proceedings in the original case and this appeal was decided adversely to him in the St. Louis Court of Appeals. Mutual Press Brick & Quarry Co. v. Tomaselli, Mo.App., 154 S.W. 2d 370. In that case, some of the same contentions were made as are now made herein and the others made herein could have been raised therein. United States ex rel. and to Use of First National Bank v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8; Cordia v. Matthes, 344 Mo. 1059, 130 S.W.2d 597. Therefore, the plea of res adjudicata is good as to all these contentions.

This leaves only plaintiffs'...