Creamer v. Banholzer, s. 48294
| Decision Date | 05 June 1985 |
| Docket Number | Nos. 48294,49239,s. 48294 |
| Citation | 694 S.W.2d 497 |
| Parties | James P. CREAMER and Mary Creamer, his wife, Plaintiffs-Respondents, v. Raymond BANHOLZER and Norma Banholzer, his wife, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
David V. Collignon, Clayton, for defendants-appellants.
William R. O'Toole, St. Louis, for plaintiffs-respondents.
Raymond Banholzer and Norma Banholzer, his wife, appellants, own Lot 3 of Block 2 of Wilbur Terrace in St. Louis County. James P. Creamer and Mary Creamer, his wife, respondents, own the adjoining Lot 2. This litigation arises out of a boundary dispute and a fence which engendered a considerable amount of animosity between these neighbors. The Creamers filed a petition in equity seeking to enjoin the Banholzers from trespassing and encroaching upon what the Creamers considered to be their property. The Banholzers counterclaimed alleging that the Creamers had trespassed upon the Banholzer property and asking the court to establish a boundary. Both parties prayed for actual and punitive damages.
The trial court ruled in favor of the Banholzers in establishing the boundary and awarded them actual damages of $870.00, the cost of a survey. The trial court denied punitive damages.
The Creamers' subsequent motion to amend the judgment was granted and the trial court awarded the Creamers a twenty foot by eighteen inch easement of access over the Banholzers' real property. The purpose of the easement was to allow the Creamers to maintain and repair their garage which was close to the established property line.
On June 13, 1984 the Creamers filed an application to hold the Banholzers in contempt of court for violation of the trial court order which granted the easement. The parties stipulated to the facts, and on August 30, 1984 the trial court granted the Creamers' motion for contempt, held the Banholzers in contempt of court, and ordered them to remove a fence and poles which the Banholzers had erected after the judgment on the Creamers' easement. The trial court fined the Banholzers the sum of $500.00 per day for each day that the fence and posts were allowed to remain on the easement after September 15, 1984 and awarded the Creamers the sum of $500.00 as attorneys fees.
The Banholzers appealed the judgment of contempt in their second appeal arising out of this litigation. On the court's own motion the two appeals were consolidated. The appeal from the contempt citation is dismissed. The judgment of the trial court establishing the boundary and granting an easement is affirmed.
The Creamers filed a motion to dismiss the Banholzer appeal from the ruling finding them in contempt and the concomitant award of attorneys fees. The motion is granted.
An order finding a party in contempt is not a final judgment. Hamilton v. Hamilton, 661 S.W.2d 82, 83 (Mo.App.1983). There is no final judgment until the court's order is enforced. In the case under review, the trial court found the Banholzers in contempt, ordered them to remove the fence and poles, assessed a fine, and the award of attorney's fees. The record fails to disclose any attempt to enforce the court's order by incarceration or otherwise. The order of the trial court finding the Banholzers in contempt is therefore interlocutory in nature and not appealable. Id. See also, Smith v. Smith, 676 S.W.2d 65, 66 (Mo.App.1984).
The Banholzers' first point relied on in their appeal from the original judgment asserts the court erred in granting the Creamers an easement across the Banholzer's property. They argue error of constitutional dimensions saying that the court's order deprived them of their property without due process of law and without their...
To continue reading
Request your trial
-
In re Marriage of Crow and Gilmore
...780 S.W.2d at 713; Torrence v. Torrence, 774 S.W.2d 880, 881 (Mo.App.1989); City of Florissant, 714 S.W.2d at 873; Creamer v. Banholzer, 694 S.W.2d 497, 499 (Mo.App.1985); Niehoff, 692 S.W.2d at 637; Hamilton, 661 S.W.2d at When "enforcement" occurs depends on the remedy. Two remedies to co......
-
Callier v. Director of Revenue, State of Mo.
...355 Mo. 690, 197 S.W.2d 667 (banc 1946); State ex rel. Spradling v. Bondurant, 501 S.W.2d 527 (Mo.App.1973); and Creamer v. Banholzer, 694 S.W.2d 497 (Mo.App.1985). With rare exception, unless a constitutional issue has been raised, a question of the constitutionality of a statute is not be......
-
Brown v. Mercantile Bank of Poplar Bluff, s. 17347
...never a matter of right; whether punitive damages are awarded is a matter within the discretion of the trial court. Creamer v. Banholzer, 694 S.W.2d 497, 499 (Mo.App.1985). We review for an abuse of trial court discretion. Id. We have already stated our conclusion that the Browns have not s......
-
Laubinger v. Laubinger
...with good pleading and orderly procedure under the circumstances of the case; otherwise, it is waived." Id. (citing Creamer v. Banholzer, 694 S.W.2d 497, 499 (Mo. App.1985)). An obvious reason for the rule is to promote judicial economy by preventing a party from sandbagging by waiting unti......