Clark Real Estate Co. v. Old Trails Inv. Co.

• Decision Date: 16 November 1934
• Docket Number: 31584
• Citation: Clark Real Estate Co. v. Old Trails Inv. Co., 335 Mo. 1237, 76 S.W.2d 388 (Mo. 1934)
• Parties: Clark Real Estate Company, a Corporation in Bankruptcy, by James B. Nourse, Trustee, Appellants, v. Old Trails Investment Company, a Corporation et al
• Court: Missouri Supreme Court

76 S.W.2d 388

335 Mo. 1237

Clark Real Estate Company, a Corporation in Bankruptcy, by James B. Nourse, Trustee, Appellants, v. Old Trails Investment Company, a Corporation et al

No. 31584

Supreme Court of Missouri

November 16, 1934

Rehearing Denied November 16, 1934.

Appeal from Jackson Circuit Court; Hon. Darius Brown Judge.

Reversed and remanded (with directions).

J M. Johnson, C. W. Prince, James N. Beery and Walter A. Raymond for appellants.

(1) Appellant's right to counterclaim is governed by the Code of Civil Procedure. Appellant's counterclaim is a cause of action arising out of the contract or transaction set forth in defendant's answer as the foundation of defendant's claim and is connected with the subject of the action pleaded in defendant's answer. Secs. 1520, 1521, R. S. 1929; Stewart v. Omaha Loan & Trust Co., 222 S.W. 808; Randolph v. Ellis, 240 Mo. 216, 144 S.W. 483; Gray v. Clement, 296 Mo. 497, 246 S.W. 943; Sec. 777, R. S. 1929. (2) Plaintiff had a legal right to dismiss its petition. Thereafter defendant with its cross-bill occupied the same position as the plaintiff had with his petition and plaintiff had a right to file a reply or answer thereto, setting up any defense to defendant's cross-bill which a defendant could set up in an answer to a petition. The petition then being out of the case, there could be no question of departure between plaintiff's reply or answer and counterclaim and plaintiff's petition. Sec. 960, R. S. 1929; Hamlin v. Walker, 228 Mo. 611, 128 S.W. 945; Secs. 849, 2291, R. S. 1929; Noren v. Am. School of Osteopathy, 2 S.W.2d 219; Morrison Mfg. Co. v. Roach and Green, 104 Mo.App. 632, 78 S.W. 644; Sec. 849, R. S. 1929. (3) Plaintiff's act in filing the original petition asking that title to the property in question be quieted in it, which was subsequently dismissed, was not an election of remedies barring its right thereafter to file a counterclaim to defendant's cross-bill, admitting title in the defendant and asking damages for defendant's fraud in obtaining such title. Cowan v. Young, 282 Mo. 36, 220 S.W. 869; Tracy v. Aldrich, 236 S.W. 347.

Henry S. Conrad, L. E. Durham and Hale Houts for respondent.

(1) No question is presented for review and respondents' motion to dismiss should be sustained. (a) No error is assigned. State ex rel. Davison v. Caldwell, 310 Mo. 405; Galbreath v. Galbreath, 24 S.W.2d 203; Mead v. Spalding, 94 Mo. 43; Huttig v. Brennan, 328 Mo. 490; Beer v. Martel, 55 S.W.2d 484. (b) By reason of the absence of any bill of exceptions or a showing of a bill of exceptions in the appellant's abstract of record, no question which the appellants attempt to raise is presented for review. Leahy v. Mercantile Trust Co., 296 Mo. 586; Shohoney v. Railroad, 231 Mo. 152; Interstate Ry. v. Railroad Co., 251 Mo. 717; Equitable Life Ins. Co. v. Natl. Bank of Commerce, 197 S.W. 117; Williams v. Railroad Co., 112 Mo. 485; Lorts v. Wash, 175 Mo. 497; Lynn County v. Bank, 175 Mo. 545; Southam v. Telegram Co., 239 Mo. 619; Home Ins. Co. v. Mo. P. & L. Co., 327 Mo. 1207; Walker v. Railroad Co., 193 Mo. 472; McDonald v. St. Louis Transit Co., 108 Mo.App. 381; Garber v. Mo. Pac. Ry., 210 S.W. 378; Wright v. Lewis, 324 Mo. 410; Hoskins v. Nichols, 213 S.W. 838. (2) The case was soundly ruled by the trial court and there was no error in any respect assigned by appellants. (a) Counts 2 and 3 of plaintiff's third amended reply were manifestly insufficient to constitute a defense or an avoidance of defendant's answer and claim of title. Rohlf v. Hayes, 287 Mo. 342; Burgess v. Majers, 24 S.W.2d 1045. (b) Counts 2 and 3 of plaintiff's third amended reply were not responsive to the issues made by the defendant's answer and claim to title and were not germane to the answer or the case. Neither constituted a claim or defense in respect to any title or interest in the real estate in question, and neither was assertable in this action or against defendant's answer. Secs. 1520, 1521, R. S. 1929; Secs. 777, 829, 849, R. S. 1929; Huff v. Land & Improvement Co., 157 Mo. 71; Rohlf v. Hayes, supra; Gray v. Ward, 234 Mo. 291; State ex rel. v. McQuillin, 246 Mo. 538; Craig v. Bright, 213 S.W. 846; Adams v. Cary, 226 S.W. 834; Barron v. Store Co., 292 Mo. 209; Seidel v. Cornwell, 166 Mo. 51; Wilson v. Lubke, 176 Mo. 217; Howard v. Brown, 197 Mo. 50; Powell v. Crow, 204 Mo. 486; Podesta v. Land Co., 152 Mo.App. 396; Sec. 1970, R. S. 1909; Maupin v. Longacre, 315 Mo. 882; Branner v. Claber, 49 S.W.2d 179; Barron v. Store Co., 292 Mo. 211; Regal Realty Co. v. Gallager, 188 S.W. 155; Crawford v. Amusement Syndicate, 37 S.W.2d 581.

OPINION

Frank, J.

Clark Real Estate Company brought a statutory action in the Circuit Court of Jackson County, at Kansas City, to quiet the title to certain property described in the petition and located in said Jackson County. The petition also asked damages both actual and punitive. Defendants, Old Trail Investment Company and A. Z. Hughes, filed a joint answer in which they denied plaintiff's alleged title, alleged title in themselves, and prayed that plaintiff be decreed to have no title, and that title be decreed in defendant, Old Trails Investment Company. Thereafter the plaintiff, Clark Real Estate Company, was declared a bankrupt and James B. Nourse, its trustee in bankruptcy, was made a party to this action. Thereafter, he, as such trustee, entered his appearance in said cause, and by leave of court dismissed plaintiff's petition and filed a reply and counterclaim to defendants' answer in which he alleged that defendant, Old Trails Investment Company, was the record owner of the property, but that said defendant obtained such record title by fraud and misrepresentations and without consideration. The facts constituting the fraud and misrepresentations are also alleged. It is further alleged that the trustee disclaims any interest that he or the Clark Real Estate Company has to the title to said real estate, and in lieu thereof asks damages, both actual and punitive, because of the fraudulent practices and misrepresentations of defendant in obtaining the record title to said property. On motion of defendant all of plaintiff's reply and counterclaim was stricken out except that part alleging that defendant was the record owner of said property and that plaintiff disclaimed any interest therein. Thereafter, defendant's motion for judgment on the pleadings was sustained and judgment was rendered vesting the title to said property in fee in the defendant, Old Trails Investment Company, and plaintiff appealed.

Respondent has filed a motion to dismiss the appeal herein on the following grounds, (1) because no question for review is raised by the purported assignments of error and points and authorities in appellant's brief, (2) because no question raised or attempted to be raised was preserved below by bill of exceptions, and (3) because no error is claimed as to the record proper.

We will take first the alleged insufficiency of the assignment of errors. These assignments allege, (1) that the court erred in holding that plaintiff's reply to defendant's answer was insufficient to constitute a defense or avoidance of defendants' answer, (2) erred in holding that plaintiff's reply was unresponsive to the issues made by defendants' answer, and (3) erred in holding that the claim set up in plaintiff's reply did not arise out of the same contract or transaction pleaded as a basis of defendants' answer and was not connected therewith within the meaning of the statutes with respect to set-offs and counterclaims.

If plaintiff's reply stated a defense to the cause of action alleged in defendants' answer or alleged a valid counterclaim against defendant, the court erred in striking out the reply. We think the assignment of errors sufficiently presents the propriety of the court's action in so doing.

Respondents' contention is that the assignment of errors does not reach a ruling of the court but at most purports to complain of the court's reason for some undisclosed ruling. The argument in support of this contention is that the court made an order sustaining the motion to strike out the reply without assigning any reason therefor, and for that reason it did not make the rulings complained of in the assignment of errors at the time he sustained the motion to strike the reply. We do not agree with this contention. The fact that the court struck out the reply justifies the inference that the court was, in effect, holding that it stated no defense to the cause of action set up in defendants' answer. Moreover, the final judgment rendered on the pleadings after the reply was stricken out, shows the court's ruling on the reply. That part of the judgment reads as follows:

". . . and it appearing to the court that the court has successfully adjudged three of said replies or answers and counterclaims of plaintiff insufficient to constitute a defense or avoidance of the answers and cross-petitions of the defendants, and that the court has stricken out as unresponsive portions of each of said three successive replies and answers of the plaintiff which purport or attempt to set up counterclaims."

Respondents contend that we have no right to look to the final judgment to ascertain the trial court's reason for striking out the reply or his ruling as to the sufficiency or insufficiency of the reply to state a defense to the cause of action alleged in defendants' answer. We do not agree with this contention. The case as well as the record thereof remained in the breast of the court until final judgment was rendered. Although the order of the court striking out the reply stated no grounds for so doing, the entire proceeding being in the breast of the court until the case was finally adjudicated, ...