Dezino v. William S. Drozda Realty Co.

• Decision Date: 05 February 1929
• Docket Number: No. 20579.,20579.
• Citation: 13 S.W.2d 659
• Parties: DEZINO v. WILLIAM S. DROZDA REALTY CO.
• Court: Missouri Court of Appeals

13 S.W.2d 659

DEZINO v. WILLIAM S. DROZDA REALTY CO.

No. 20579.

St. Louis Court of Appeals. Missouri.

February 5, 1929.

Rehearing Denied February 19, 1929.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Alexander Dezino against the William S. Drozda Realty Company and others, in which defendant named interposed an answer and cross-bill. Default of plaintiff was granted, and decree was entered in defendant's favor on the answer and cross-bill, and, after motion to vacate the plaintiff's default was overruled, plaintiff appealed. Decree affirmed.

Diehm, Fickeissen & Burch, of St. Louis, for appellant.

Laughlin, Frumberg, Blodgett & Russell, of St. Louis, for respondent.

HAID, P. J.

This was an action instituted December 15, 1926, under the provisions of sections 7240 to 7243 of the Revised Statutes of Missouri 1919, to determine the rights and interests of various mechanics' lien claimants and claimants under other liens against lots 24 and 25 in block 9 of John F. McDermott's Morning Side Park, and in block 5169 of the city of St. Louis, Mo., said lots being contiguous to each other and together fronting 111 feet 7 5/8 inches on the south line of Lansdowne avenue by a depth southwardly of 125 feet along the west line of said lot 25 and 149 feet 5 1/8 inches along the east line of said lot 24, to an alley having a width on alley of 29 feet 9¼ inches, bounded east by Wherry avenue, all of said property being situated in the city of St. Louis, Mo.

It named as defendants the mechanics lien claimants, the cestuis que trusts and trustees in two deeds of trust, J. Howell, and William S. Drozda, as trustee for J. Howell upon a third deed of trust to secure plaintiff's promissory note of $1,500.

On the same day suit was filed, December 15, 1926, a sale under the last mentioned deed of trust was to take place, pursuant to an advertised notice thereof, and an injunction against the sale was prayed, and an injunction granted upon the filing of a bond, which was not executed. On December 23, 1926, by leave of court, C. E. Drozda was made a party defendant, and an amended petition was then filed against the parties in the original petition and C. E. Drozda. In the amended petition it was alleged that a sale of the property was made under the third deed of trust above mentioned to said C. E. Drozda, notwithstanding the fact that before the sale plaintiff caused written notices to be delivered to C. E. Drozda and then to William S. Drozda. The amended petition sets out the inadequacy of the price at which the property was sold and alleged reasons therefor, and that the sale was wrongful, fraudulent, and oppressive because of certain alleged facts and that the sale was void because in violation of the jurisdiction of the court, as provided by the sections of the statute above mentioned.

On February 7, 1927, William S. Drozda Realty Company, not named as a defendant in either the original or amended petition, filed its answer denying generally the allegations of the amended petition. On November 15, 1927, at the October term, 1927, said company filed an amended answer and cross-bill to plaintiff's amended petition.

On November 15, 1927, the William S. Drozda Realty Company filed motion for a special setting of the cause and to require plaintiff to secure costs, and on November 18, 1927, that motion was sustained as to costs, and plaintiff was required to give bond or deposit $50 in lieu thereof within ten days.

On December 5, 1927, at the December term, 1927, on motion of William S. Drozda Realty Company, plaintiff's action was dismissed for failure to secure costs.

On the same day, upon motion of the William S. Drozda Realty Company, default of plaintiff was granted and entered upon the realty company's cross-bill, and on December 16, 1927, a decree was entered against plaintiff on the amended answer and cross-bill of the realty company.

At the same term, and on February 1, 1928, plaintiff filed his motion to vacate the order and entry of his default on the cross-bill and the decree entered thereon. On March 5, 1928, at the February term, 1928, the court overruled the last-mentioned motion, and, on motion of plaintiff, this order in turn was vacated on March 6, 1928. On April 9, 1928, at the April term, 1928, the motion of plaintiff to vacate the order of default on the cross-bill of the realty company was overruled.

It also appears that the amended answer and cross-bill of the realty company was furnished to one of the attorneys of record of the plaintiff, who, although he had not withdrawn of record as such, claimed no longer to represent the plaintiff, and so notified the attorneys for the realty company, and, so far as the record discloses, no service thereof was made on the plaintiff, nor does the record disclose just when the attorney ceased to represent plaintiff, except that it was some time prior to November 17, 1927.

It is suggested by respondent that this case should be transferred to the Supreme Court on the ground that it involves title to real estate. While it is true, under the decree of the circuit court, the realty company is vested with the fee-simple title to the property described, and that the plaintiff has no right, claim, or interest in it, or any lien thereon, and enjoins him from asserting any claim thereto, yet the only questions before this court are matters of procedure, and, consequently, the question of title to the property is involved incidentally only. In order to take a case involving questions of the right to real property out of our jurisdiction, the title thereto must be directly involved. Sikes v. Turner (Mo. Sup.) 242 S. W. 940, and cases cited. The sole questions before us are, Was the circuit court in error in rendering a decree upon the default, and should it thereafter have vacated such orders?

Complaint is made that the amended answer and cross-bill of the realty company was served upon an attorney of record in the case, but who claimed he no longer represented the plaintiff as attorney, because circumstances had made it necessary that he should be a witness for plaintiff. Reliance for this position is placed upon a rule of the circuit court requiring service to be made upon a party "or his attorney." This rule must necessarily mean the attorney whom the court recognizes as representing the party in the proceeding before it; i. e., the attorney of record in the case. Wilson v. St. L. & S. F. Ry. Co., 108 Mo. loc. cit. 595, 18 S. W. 286, 32 Am. St. Rep. 624. In the conduct of the business of the courts, there would be much confusion and uncertainty in the administration of justice, if there was uncertainty concerning the person upon whom to serve pleadings, notices, and other documents. Attorneys are officers of the court and an aid to it, and, when the court provides for service on a party or his attorney, it can have reference only to that one who has been authorized and become the representative in court for the particular litigant in the case before the court, and not some uncertain person whom the litigant has not seen fit or proper to make known to the court. When an attorney ceases to represent a client for whom he has appeared in a case, he should take steps to secure the withdrawal of his name of record, and, if his client desires to proceed with the litigation, it is incumbent upon him to secure the appearance of some other attorney who is to conduct the litigation, otherwise the courts would be unable to proceed in an orderly way. There is no complaint of the perpetration of any fraud in the matter of the service in this case, and we are therefore constrained to hold that the service upon the attorney of record, under the rule of the circuit court, was proper service.

The remaining questions raised are directed to the entry of the default against the plaintiff on the realty company's cross-bill, to the entry of the decree thereon, and to the subsequent orders overruling the motion of the appellant to vacate the default and decree.

The appellant contends that the decree or judgment is void; that the court's jurisdiction was at an end when it dismissed the petition of the plaintiff for failure to secure costs, because the cross-bill in this case is not a counterclaim within the meaning of sections 1232 and 1292, R. S. Mo. 1919. He bases this upon the fact that plaintiff was not in default upon the amended answer and cross-bill because it was unnecessary for him to reply thereto, in view of the fact that the whole of the pleading simply constituted a denial, in either negative or affirmative form, of the allegations of the petition of plaintiff.

We are of the view, however, that the amended answer and cross-bill was in the...