Euge v. Golden
| Decision Date | 03 May 1977 |
| Docket Number | No. 37480,37480 |
| Citation | 551 S.W.2d 928 |
| Parties | Harvey F. EUGE, Plaintiff-Appellant, v. James F. GOLDEN et al., Defendants-Respondents. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Harvey F. Euge, pro se.
Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Dennis H. Tesreau, John A. Schneider, Hillsboro, for defendants respondents.
This is an appeal from an order of the Circuit Court of St. Louis County entered on June 13, 1975, sustaining the defendants-respondents' motion to dismiss the first amended petition of the plaintiff-appellant, Harvey Euge, which sought to set aside a trustee's foreclosure sale for fraud and misrepresentation and damages for slander of title. For reasons herein stated, we reverse the order sustaining the motion to dismiss and remand the cause for further proceedings.
After oral argument, defendants-respondents filed a motion to dismiss the appeal, contending that plaintiff-appellant failed to comply with Rule 81.04. Defendants argue that appellate jurisdiction has not been properly invoked because plaintiff's notice of appeal was not filed within 10 days after the trial court's order became final as required by Rule 81.04. Defendants' contention is without merit.
Rule 73.01(1)(c) provides that, in a court-tried action, a party "may, but need not" file a motion for new trial in order to preserve error. If the party does file a motion for new trial, the judgment does not become final for 90 days or until the trial court rules on the motion. Rule 81.05; 508 Chestnut, Inc. v. City of St. Louis, 389 S.W.2d 823, 827(1) (Mo.1965). In the case at bar, plaintiff filed his motion for rehearing or, in the alternative, motion for new trial on June 28, 1975, within the 15 day time limit for such motion. Rule 73.01. The record does not contain any ruling by the trial court on this motion. Thus, the order dismissing plaintiff's action on June 13, 1975 did not become final until September 26, 1975, 90 days after plaintiff's motion for new trial was filed. Rule 81.05. Plaintiff's notice of appeal on October 6, 1975 was within 10 days after the judgment or order became final and was timely. Rule 81.04.
Plaintiff is not an attorney but represented himself in the proceedings below and filed a pro-se brief here.
Plaintiff filed a "Petition to Set Aside a Trustee's Foreclosure Sale for Fraud, Deceit, and Misrepresentation To Set Aside a Trustee Deed Issued Therein For Damages for Slander of Title." Defendants moved to dismiss the petition for failure to state a claim upon which relief could be granted or, in the alternative, to make the petition more definite and certain. In addition, defendants moved for an order that plaintiff give security for costs. On April 22, 1975, the following order was entered by Judge George E. Schaaf:
Plaintiff then filed his three-count, amended petition, asserting: (1) he bought certain real estate by general warranty deed from defendant Goldens; (2) defendant Goldens, as maker of a note to defendant Coster, and defendants Coster and Schubel, had a false, fraudulent, and worthless deed of trust against the real estate, which did not represent a true debt; (3) plaintiff was never informed of the terms of the deed of trust, and no demand was made upon him to pay it; (5) Schubel and Coster foreclosed on the deed of trust, and Schubel sold the property to defendant Goldens; (6) the deed of trust was "maintained" on the real estate at the time conveyed to plaintiff by general warranty deed for the purpose of defrauding plaintiff of his money and property rights; (7) defendant Goldens is seeking to oust him from possession of the real estate; and (8) by these acts, defendants have slandered plaintiff's title to the real estate.
In summary, plaintiff alleged that defendants engaged in a scheme to take away his property by a foreclosure on a false deed of trust. He asked the court to rule that the deed of trust was null and void, to set aside the foreclosure sale and trustee's deed, to prevent enforcement of the trustee's deed, and to award actual and exemplary damages.
Defendants again moved to dismiss the petition, urging that: (1) the petition did not state a claim upon which relief can be granted, because plaintiff admitted the deed of trust was recorded at the time of the purchase of the real estate and plaintiff did not contend he did not have notice of the foreclosure; and (2) the cause of action was dismissed by the operation of Judge Schaaf's order, because the petition was not filed and the costs were not paid within the 30 day period allotted in said order.
On the 13th day of June, 1975, the following order was entered by Judge Ninian Edwards:
Plaintiff's brief urges that his petition was filed within the 30 days allotted him by Judge Schaaf's order, that his petition states a cause of action for fraud, and that therefore the lower court erred in dismissing his petition. Defendants argue that the transcript on appeal shows a filing date after the 30 day period and that, in addition to failure to file on time, the petition was properly dismissed for failure to state a claim because the deed of trust was recorded prior to the conveyance.
We first consider the question whether the first amended petition was timely filed. We have examined the trial court file and find that ...
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Bates v. United States
...be granted, the plaintiff has a right to proceed." Butler v. Circulus, Inc., 557 S.W.2d 469, 472 (Mo.App.1977), quoting Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977). The method of analysis is quite different when reviewing an action for disposition on its merits, as here, where rather ......
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American Drilling Service Co. v. City of Springfield
...it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Euge v. Golden, 551 S.W.2d 928, 931(5) (Mo.App.1977). "The ruling (on a motion to dismiss) is ordinarily confined to the face of the petition which is construed in a light favo......
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Schweig v. City of St. Louis
...the plaintiff's standpoint, show any ground upon which relief can be granted, the plaintiff has a right to proceed." Euge v. Golden, 551 S.W.2d 928, 931(4) (Mo.App.1977). Guided by these principles, we consider whether the petition states a cause of action and whether the allegations show t......
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Mueller v. Abdnor
...was "in honest contention." He did not actually sue, however, until two months after he recorded the sale contract.7 Euge v. Golden, 551 S.W.2d 928, 932 (Mo.App.1977) (plaintiff must allege "false words ... maliciously uttered which resulted in his pecuniary loss") (citing Long v. Rucker, 1......