Costello v. Goodwin et al.

Decision Date01 March 1948
Docket NumberNo. 20945.,20945.
Citation210 S.W.2d 375
PartiesMARIE W. COSTELLO, RESPONDENT, v. H.O. GOODWIN, ET AL., APPELLANTS.
CourtMissouri Court of Appeals

Appeal from Circuit Court of Jackson County. Hon. Brown Harris, Judge.

JUDGMENT AFFIRMED.

Guy W. Runnion, Wm. Dennis Bush and C.W. Prince for appellants.

(1) The court will take judicial notice of its records in former cases between the same parties. Sabol v. St. Louis Cooperage Co., 31 S.W. 2d 1041. (2) If an owner of land stands by and says nothing when he knows another is leasing the land to someone who is ignorant of such owner's title, then the owner is estopped from afterwards asserting any claim of ownership against such person taking a lease on the land without knowledge of the owner's claims. Note in 50 A.L.R., pages 668 to 973, and particularly pages 672, 682, 683, 684, 685; Prouse v. Schmidt, 156 S.W. 2d 919 (Mo.) (1, 2); Balding v. Farm & Home Savings & Loan Ass'n, 131 S.W. 2d 57 (Mo. App.) (4, 5, 6); 31 C.J.S., page 308, Sec. 89, Subject, Estoppel; Guffey v. O'Reiley, 88 Mo. 418; Palmer v. Welch, 171 Mo. App. 580, 154 S.W. 433 (2, 3); Berry v. Cobb, 20 S.W. 2d 296 (1, 2, 3) (Mo. App.). (3) The judgment in the forcible entry and detainer suit is binding upon the defendants, the members of their families, their privies, tenants, agents and employees, and all persons who, though strangers to the record, have entered into possession after the commencement of the action of forcible entry and detainer. Note in 15 Am. State Rep. l.c. 59, 60, 61, and cases cited. 22 Am. Jur., p. 944, Sec. 50; 36 C.J.S., p. 1210, Note 50; Turner v. Edmonston, 109 S.W. 33, 210 Mo. 411; Audrain v. Republic Finance Co., (Mo.) 286 S.W. 95; Mo. State Life Ins. Co. v. Russ, (Mo.) 214 S.W. 860; Sec. 2906, R.S. Mo., 1939. (4) A Court of Equity will not enjoin the enforcement of a judgment in forcible entry and detainer. 22 Am. Jur., p. 944, Sec. 51. (5) Every court has exclusive control of its own process and no court has jurisdiction to enjoin an execution issued by another court. Flinn v. Richardson, 15 S.W. (2) 941 (Mo. App.); State ex rel. v. Landwehr, 27 S.W. (2) 25, 324 Mo. 1122; Pettus Adm. v. Elgin, 11 Mo. 411; Blank, Inc. v. Lennox Land Co., 174 S.W. 2d 862, 357 Mo. 932; State ex rel. v. Hogan, 324 Mo. 1130, 27 S.W. 2d 21; Haehl v. Wabash R. Co., 119 Mo. 325, 24 S.W. 737; State ex rel. v. Ellison 191 S.W. 49.

George M. Hare and Charles V. Garnett for respondent.

(1) The lease from Grace Dodds to defendant Goodwin is void as to this plaintiff, and, as against this plaintiff, Goodwin is not entitled to the possession of the liquor store. Kansas City Southern Ry. Co. v. Sandlin, 158 S.W. 857; City of St. Louis v. Laclede Gas Light Co., 96 Mo. 197, 198; Morriss v. Finkelstein, 145 S.W. 2d 439, 442. 62 C.J. 536. (2) Grace Dodds could not bind Marie Costello, either by her written lease to Goodwin, or by her acceptance of the written agreement of Goodwin to rent the liquor store to Max Costello. Timothy v. Hicks, 164 S.W. 99, 104. (3) The payment of rent by Arello does not constitute ratification of the Dodds-Goodwin lease or estop the plaintiff, because such payments were made without full knowledge of the facts. Sutorius v. Mayor (Mo. Sup.), 170 S.W. 2d 387, 396. (4) No judgment was rendered against Marie Costello in the unlawful detainer suit, nor was she a party to that suit; and that judgment cannot be used to deprive her of her title or right of possession to the liquor store. (5) Respondent was entitled to an injunction to protect her ownership and right of possession from the threat of ouster under a judgment rendered in a cause to which she was not a party. Sec. 1683 R.S. Mo. Ann.; Madden v. Fitzsimmons, 235 Mo. App. 1074; 150 S.W. 2d 761; Macklind Inv. Co. v. Ferry, 341 Mo. 493, 108 S.W. 2d 21; Payne v. Daviess County Savings Assn., 126 Mo. App. 599, 105 S.W. 15; Carrell v. Meek, 155 Mo. App. 338, 137 S.W. 19; Meander v. Breck, 159 S.W. 2d 310; State ex rel. Board of Education v. Tildemann, 69 Mo. 306, 308.

DEW, J.

This is an action brought in the Circuit Court of Jackson County, at Kansas City, by the respondent, the plaintiff, to enjoin the appellants, the defendants, from interfering with the plaintiff's possession and right of possession of a certain retail liquor store building in Jackson County, Missouri under any writ of restitution issued or to be issued by the division of the Circuit Court of the same county, at Independence, in a certain cause in the latter court wherein the appellant Goodwin herein was plaintiff, and certain third parties named were sole defendants. In the instant case a temporary injunction was issued, bond furnished, and upon final hearing, a decree was rendered making the injunction permanent, from which decree the defendants have appealed.

A motion to dismiss this appeal has been filed and is earnestly urged and as earnestly opposed. The ground of the motion is that the transcript herein was not filed in the trial court nor in this court within the time required by law and by the rules of court.

The record shows that the notice of appeal was filed in the trial court on March 11, 1947. Within 90 days thereafter, to wit: on June 3, 1947, the trial court, on the ex parte application of appellants, extended the time for filing the transcript to September 8, 1947, which was three days short of six months after the taking of the appeal. This order was authorized under Sections 135, 137, 138 and subsection (b) of Section 6 of the General Code, Laws of Missouri, 1943, pp. 353-397, and Supreme Court Rule 3.26. On September 19, 1947, ten days beyond the period of the last extension, and eight days after the expiration of six months from the date of the filing of the notice of appeal, the transcript was filed in the trial court, after leave to file the same was on that day given by that court on written motion therefor accompanying the transcript, and without notice, consent or appearance on respondent's part, and a copy was filed in this court September 22, 1947.

The motion for leave to file the transcript alleged, in substance, that the transcript had been promptly ordered, and was prepared before the expiration of the extension allowed, except as to certain documentary exhibits in the possession of the counsel for the plaintiff; that he was out of the city and could not be reached by the court reporter so that the exhibits were not obtained until September 17, and the transcript was then accordingly completed and ready for filing on September 19; that said delay was not due to any fault or neglect on the appellants' part, but because of the inability to obtain the exhibits, as aforesaid, from the plaintiff's attorney and the physical inability of the reporter, on account of other and prior transcripts, to complete said transcript at an earlier date. Affidavits of the court reporter and associate counsel were filed tending to corroborate the above motion. One associate of appellants' counsel made affidavit that he had charge of the filing of the transcript and learned in August that the same was complete except for certain paid checks in evidence and in the possession of the respondent's attorney; that the court reporter informed him that she was trying to obtain the checks and he relied upon her to obtain them; that he then became ill and was confined in bed at home and did not know until September 11 that the exhibits had not been obtained from the respondent's attorney, who was reported still out of the city; that he examined the Civil Code and decided that the proper procedure was to complete the transcript as soon as possible and file a motion for leave to file it under Code Section 6(b) (2).

Counsel for respondent files herein his affidavit wherein he states that he left the city July 18, announcing to his office associates his intention to return by August 20. He in fact returned August 14, and wrote a letter on another matter to the attorney for the appellants on August 25; that he received no calls regarding the exhibits in this case until about September 16; denied that anyone reported his absence from the city after August 14; stated that he had a conference with appellants' attorney in the latter's office about August 22, regarding another case; that the first call he received regarding the exhibits in question was from the court reporter on September 16; that he examined the file during that day and delivered the exhibits to her the next morning.

Supreme Court Rule 3.26 prohibits the trial court from extending the time for filing of transcripts beyond six months from the date the notice of appeal was filed. Regardless of the failure to notify respondent of the motion for leave to file the transcript after six months had expired since the filing of the notice of appeal, the trial court had no authority to grant such leave. Under Supreme Court Rule 1.05, appellants could have sought a stipulation permitting the omission of the exhibits referred to from the transcript and the filing of the same separately in this court on or before the setting of the case for hearing. If he had failed to obtain such stipulation he could then under Rule 1.30, have applied to this court for an extension of time for the filing of the transcript, after the expiration of the six months' period below, and upon proper notice to his adversary.

As the record now stands, the appeal is not invalid, but this court, under Rule 1.30, is authorized, in its discretion, to dismiss the appeal. The question remains whether, under all the circumstances shown, we should decline to consider the merits of the appeal and to rule that the appeal has been forfeited, or permit the appeal to stand and consider the transcript as if timely filed. Rule 1.15 authorizing suspension of certain rules of procedure pertaining to appeals does not appear to relate to the requirements fixing the periods within which the transcript shall be filed in the...

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6 cases
  • Gaddy v. State Bd. of Registration for Healing Arts
    • United States
    • Court of Appeal of Missouri (US)
    • November 23, 1965
    ...... State v. Amsden, Mo., 299 S.W.2d 498, 502(7); City of Rolla v. Riden, Mo.App., 349 S.W.2d 255, 257(1-3). See Costello v. Goodwin, 240 Mo.App. 538, 210 S.W.2d 375, 377-378. Before proceeding to the merits, we again confess our wonderment that capable counsel so ......
  • City of Rolla v. Riden
    • United States
    • Court of Appeal of Missouri (US)
    • August 25, 1961
    ...... State v. Amsden, Mo., 299 S.W.2d 498, 502(7). Consult also Costello v. Goodwin, 240 Mo.App. 538, 210 S.W.2d 375, 377-378.         The city's first point is here (as it was in the timely motion for new trial in ......
  • Costello v. Goodwin
    • United States
    • Court of Appeals of Kansas
    • March 1, 1948
  • Morris Plan Co. of Kan. v. Jenkins
    • United States
    • Court of Appeal of Missouri (US)
    • December 15, 1948
    ......§ 847.129,. Supreme Court Rule 1.30, we have decided, notwithstanding, to. determine the case upon its merits. Costello v. Goodwin. et al., Mo.App., 210 S.W.2d 375. . .          These. two cases were consolidated for trial and are consolidated on. ......
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