Corken et al. v. Workman et al.

• Decision Date: 09 November 1936
• Docket Number: No. 18749.,18749.
• Citation: 98 S.W.2d 153
• Parties: THOMAS A. CORKEN ET AL., DEFENDANTS IN ERROR, v. JOSEPH T. WORKMAN ET AL., PLAINTIFFS IN ERROR.
• Court: Missouri Court of Appeals

98 S.W.2d 153

THOMAS A. CORKEN ET AL., DEFENDANTS IN ERROR, v. JOSEPH T. WORKMAN ET AL., PLAINTIFFS IN ERROR.

No. 18749.

Kansas City Court of Appeals. Missouri.

November 9, 1936.

Error to Circuit Court of Andrew County. — Hon. R.B. Bridgeman, Judge.

REVERSED AND REMANDED (with directions).

Livengood & Weightman and A.F. Harvey for defendant in error.

Culver, Phillip, Kaufman & Smith for plaintiff in error.

REYNOLDS, J.

On April 27, 1936, the plaintiffs in error filed in this court their application for a writ of error directed to the Circuit Court of Andrew County, requiring that a transcript of all of the proceedings lately thereon had in said court in a cause therein heard, wherein Thomas A. Corken and Annice Corken were the plaintiffs and Joseph T. Workman, Lulu W. Staples, and William G. Sawyers, trustee, were the defendants, be transmitted to this court for review and for the correction of errors therein and in the judgment.

On such date, the application was granted; and a writ of error was ordered and issued upon due notice to the defendants in error, in compliance with which a complete transcript of the record in said cause, including the judgment, duly certified by the clerk of the Andrew County Circuit Court, has been filed in this court.

It appears from the said record that, on September 13, 1933, the defendants in error herein, as plaintiffs, filed in the Circuit Court of Nodaway County their certain petition in equity against the plaintiffs in error herein, as defendants therein, by which they sought to enjoin and restrain the plaintiffs in error from proceeding with the sale of certain real estate fully described in said petition under certain deeds of trust theretofore executed by them to plaintiffs in error by which said real estate was conveyed in trust to plaintiff in error William G. Sawyers as trustee with power of sale upon default in payment to secure the payment of three certain promissory notes, executed by them contemporaneously with said deeds of trust, one of which was for $10,000 made payable to Joseph T. Workman and two of which were for $11,000 made payable to Lulu W. Staples, each of said notes bearing date of March 1, 1928, and each coming due March 1, 1933. It further appears that none of said notes were paid upon the due date thereof, according to the terms expressed upon the face of each, but that default was made upon such due date in the payment of each of said notes. It appears that, thereafter, the holders of said notes demanded of the trustee, William G. Sawyers, one of the plaintiffs in error herein, that he advertise for sale the real estate described in said deeds of trust securing the payment of said notes, according to the terms of said deeds of trust, and sell the same or as much thereof as might be necessary for the purposes of paying said notes and that said trustee did advertise said real estate for sale on September 16, 1933, in compliance with the provisions of the said deeds of trust, and was threatening to and was ready to proceed with the foreclosure of said deeds of trust and the sale of said real estate thereunder on said date.

The defendants in error complained in their petition that the time for the payment of said notes by agreement with the holders thereof or their agents duly authorized had, upon a valuable consideration, been extended beyond the due date thereof as expressed on the faces of said notes to March 1, 1934, and sought by their petition to restrain the plaintiffs in error herein from the sale of said real estate on the date for which said sale had been advertised (to-wit, September 16, 1933) and from the sale thereof on any other date until the further orders of the court.

On September 14, 1933, the petition being presented to the judge of the Circuit Court of Nodaway County in vacation, a temporary injunction or restraining order was ordered by the judge of said court in vacation conditioned on defendants in error giving and filing a bond for $2500 restraining the foreclosure under said deeds of trust and the sale of said real estate thereunder on the date for which said sale was advertised (to-wit, September 16, 1933) and further restraining the sale thereof at any other time until the further orders of the court, which bond was executed by defendants in error and approved by the judge and filed by defendants in error with the clerk of the court. The temporary injunction thereupon becoming effective, the plaintiffs in error stopped the sale on the date for which it was advertised and thereafter refrained from any further attempt to sell said lands in compliance with the terms of said temporary injunction.

It appears that, on October 2, 1933, the plaintiffs in error filed their demurrer to the petition of the defendants in error in the Nodaway County Circuit Court.

On October 29, 1933, an order was made in the Nodaway County Circuit Court in said cause transferring the venue thereof to the Circuit Court of Andrew County; and all further proceedings in said cause were had in the Circuit Court of Andrew County.

On February 22, 1934, the Circuit Court of Andrew County, pursuant to the stipulation of the parties filed therein, entered an order modifying the original injunction or restraining order so as to restrain plaintiffs in error from foreclosing the deeds of trust mentioned in the original restraining order until March 1, 1934.

The cause was reached for final hearing in the Andrew County Circuit Court on May 31, 1936. On that date, the demurrer of the plaintiffs in error to the petition was overruled, after which the plaintiffs in error filed answer which, after admitting the execution of the notes and the deeds of trust mentioned in the petition by the defendants in error, set up that the plaintiff in error Lulu W. Staples was, at the time of their delivery and at all times mentioned, the owner of said notes and that the...