Dunlap v. Donnell
| Decision Date | 20 November 1950 |
| Docket Number | No. 6922,6922 |
| Citation | 234 S.W.2d 330 |
| Parties | DUNLAP et al. v. DONNELL et al. |
| Court | Missouri Court of Appeals |
Chas. E. Prettyman, 3rd, Neosho, for appellants.
A. H. Garner, Joplin, for respondents.
Plaintiffs sued for $1,900 actual and $1,000 punitive damages, and from a judgment for defendant Donnell, have appealed.
At the outset of this case, we are confronted with a violation of the statute and the rules relative to the filing of transcripts. The notice of appeal was filed December 22, 1949. On March 16th, 1950, and within 90 days from the filing of the notice of appeal, the time for filing the transcript was extended 60 days 'from this date'. On May 16--the 61st day thereafter--another 60-day extension was granted by the trial court, which if authorized would have extended the time to July 16. But the circuit court has no right to extend the time for filing the transcript more than six months from the date of the filing of the notice of appeal (Supreme Court Rule No. 3.26) which date would have been June 22. The transcript was filed July 8, 1950, 16 days after the six months had expired.
In Morris Plan Co. of Kansas v. Jenkins, Mo.App., 216 S.W.2d 160, we had a situation similar to this and while we stated that we would be justified in dismissing the appeal for a violation of the rules, that inasmuch as a transcript had been actually filed, the parties had briefed and submitted the case without any question as to its timely filing having been raised, we would consider the case on its merits. We will do likewise in this case, but these holdings do not have that famous quality attributed to the law of the Medes and the Persians, (Daniel 6:8) and we may not be so liberal next time.
The petition alleges that plaintiffs are husband and wife and that defendants are each engaged in the trucking business in Joplin, Missouri; that the plaintiffs are of advanced years, ill in health and infirm, not familiar with business and finance and that these facts were known to defendants. That the defendants are young and healthy, thoroughly familiar with business transactions and took advantage of these known facts to defraud the plaintiffs. Furthermore, it was alleged that Earl C. Marks was the son of plaintiff, Letha Dunlap, and that therefore a fiduciary and confidential relationship arose between plaintiffs and defendants; that plaintiffs in September, 1946, had a bank draft written by a California bank on a Chicago bank for $2,038.16, payable to plaintiffs; that defendants wrongfully and fraudulently conspired to cheat and defraud the plaintiffs and, in pursuance of that conspiracy, on the 19th day of September, 1946, came to the home of the plaintiffs in Joplin, which was across the street from the home of defendant Earl C. Marks, and took both of them to a bank; that at the bank, defendants acting in collusion, with the intent to cheat the plaintiffs, did cause plaintiffs to endorse the bank draft and from the proceeds paid to plaintiffs $138.16, but that defendants kept $1,900 of the money without any consideration passing to plaintiffs.
It was further alleged that the two defendants agreed with plaintiffs that at the time the draft was cashed, Marks would execute a promissory note, properly secured, to plaintiffs for the sum of $1,900 and that defendant Jack Donnell would sign the same as additional security for said sum; that as a result of the conspiracy alleged, the plaintiffs were induced to endorse the bank draft and give over to defendants the sum of $1,900 and that upon obtaining said $1,900, defendants refused to sign any note securing the plaintiffs but did abscond with said money; that a demand has been made on each of the defendants that they give to plaintiffs a promissory note with sufficient collateral to secure the prompt payment of the same but that these demands have been refused and therefore plaintiffs have been defrauded out of $1,900 together with interest from the 19th day of September, 1946.
It was further alleged that all the aforesaid acts were willful, wrongful, malicious, wanton, vexatious and in utter disregard of plaintiffs' rights and for those reasons they asked $1,000 punitive damage.
Defendant Earl Marks filed a motion to strike out certain portions of the petition and also a motion to dismiss and for costs. All these were overruled and defendant Marks was given 30 days in which to plead further. He filed no other pleading and did not further appear in the case.
Defendant Jack Donnell filed an answer denying specifically paragraph by paragraph all the allegations in plaintiffs' petition except that he admitted he lived in Joplin and was in the trucking business.
The testimony on the part of the plaintiffs was that they had formerly lived in California and that upon returning to Missouri, they drew their funds from a California bank in the form of a bank draft, payable to both of them in the sum of $2,038.16, and that the draft was drawn on the First National Bank of Chicago. They returned to Joplin and were living at 1202 Missouri Avenue on the 19th day of September, 1946. Letha Dunlap was 60 years old at that time; that about 2:30 p. m., on September 19th, four days after their return, defendant Jack Donnell came alone to their home which he unceremoniously entered without the formality of knocking; that he had his hand in his coat pocket as if concealing a weapon therein and demanded, 'You come and go with me, and don't open your mouth.' They were 'afraid of their lives', were very much frightened because he (Donnell) acted like he was 'the law.' Plaintiff, Ora Dunlap, had the bank draft in his pocket. When the three of them got to the car, they discovered Earl Marks, a son of Letha's by a former marriage, in the car; that the four of them proceeded from 1202 Missouri Avenue to a bottling works on Sixth Street where Donnell and Marks got out, locked the car and Donnell instructed the plaintiffs not to leave it. The car was locked, they were too frightened to leave, and stayed in the car until the two defendants returned in about ten minutes. They then moved over to Main Street where they parked near a jewelry store, got out of the car and were accompanied to the bank about 2:30 in the afternoon. When they entered the bank they were instructed to take seats near the front and the two defendants went back further in the bank lobby while some papers were prepared and they talked to a banker. Plaintiffs could not hear what they said but after a while, defendant Donnell came back to them and said, 'You hand over the draft', which they did, after each of them had endorsed it. Donnell then endorsed the draft also, cashed it and paid to Ora Dunlap $138.16 in cash. They were then ordered to leave the bank and get in the car at which time they proceeded homeward. Earl Marks was the first to leave the car and when they were released by defendant Donnell, he cautioned them, 'Go home, and don't tell any tales, or you won't be able to tell anything.' They did go home, did not say anything to anyone until a few days later, when they went down to the home of Jack Donnell and demended their $1900, which Donnell refused to return. They then asked Donnell where the money was and were informed it was in a soap factory. No further action was taken until this suit was filed, June 23, 1947, and no complaint was made to the authorities.
The plaintiffs testified that they did not know how Donnell and Marks knew they had the bank draft, that they had never seen Donnell before the day he came to their house and they had not seen Marks for a long time prior to that date and had not seen him afterwards. Neither of the plaintiffs had talked to Marks about a loan or told him of the draft.
At the close of plaintiffs' testimony, defendant Donnell moved the court to dismiss the action because there was no testimony that the draft was delivered to the defendants by threats and duress. This motion was overruled by the court for the reason no objection had been made to the evidence when offered.
The evidence on the part of the defendant, Jack Donnell, tended to show that, prior to the transactions in controversy, Earl Marks was working for him, driving a truck and trailer; he had been buying soap in Texas and selling it in Illinois and Missouri and Marks was driving the truck so used; that Marks wanted to buy the equipment he had been driving and defendant agreed to sell it to him for $4,000. The equipment was reasonably worth this amount. Marks and...
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City of Rolla v. Riden
...with no formal complaint or motion to dismiss the appeal [compare Prudot v. Stevens, Mo.App., 266 S.W.2d 756, 762(10); Dunlap v. Donnell, Mo.App., 234 S.W.2d 330, 331(1); Morris Plan Co. of Kansas v. Jenkins, Mo.App., 216 S.W.2d 160, 161(3)], we have concluded that, in the exercise of our d......
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State v. Amsden
...court under Rule 1.30, as was also done in State v. Grant, supra. See, also, Prudot v. Stevens, Mo.App., 266 S.W.2d 756; Dunlap v. Donnell, Mo.App., 234 S.W.2d 330. Sec. 512.110 contemplates and provides that the original transcript is to be filed in the appellate court, and a 'copy' thereo......