Euge v. Golden, No. 37480
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | DOWD; CLEMENS, P. J., and SMITH |
| Citation | 551 S.W.2d 928 |
| Parties | Harvey F. EUGE, Plaintiff-Appellant, v. James F. GOLDEN et al., Defendants-Respondents. . Louis District, Division One |
| Decision Date | 03 May 1977 |
| Docket Number | No. 37480 |
Page 928
v.
James F. GOLDEN et al., Defendants-Respondents.
Motion for Rehearing or Transfer Denied June 9, 1977.
Application to Transfer Denied July 11, 1977.
Page 929
Harvey F. Euge, pro se.
Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Dennis H. Tesreau, John A. Schneider, Hillsboro, for defendants respondents.
DOWD, Judge.
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
Page 930
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:
"It is difficult to determine whether plaintiff's cause of action is for an Injunction, a Suit to Set Aside a Foreclosure Sale and Deed of Trust, or a Suit for Damages on the theory of slander of title. They are all commingled. Therefore, defendants' Motion to Dismiss, heretofore heard and submitted, is sustained. However, this Court will permit plaintiff one more attempt to properly plead within 30 days.
"Defendants' Motion to Secure Costs is hereby sustained. Filing costs in St. Louis County are $71.00 and plaintiff is granted 30 days to pay into the Registry of Court the additional $30.00 Court costs required."
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)...
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Bates v. United States, Civ. A. No. 78-3205-CV-S
...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, No. 11889
...unless 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 lig......
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Mueller v. Abdnor, No. 91-3134
...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, ......
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Tyler v. Whitehead, No. KCD
...to the petition the benefit of every reasonable intendment. Butler v. Circulus, Inc., 557 S.W.2d 469, 472 (Mo.App.1977); Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); Associated Grocers' Co. of St. Louis, Mo. v. Crowe, 389 S.W.2d 395, 399 (Mo.App.1965). The petition under the challenge......
-
Bates v. United States, Civ. A. No. 78-3205-CV-S
...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 ......
-
American Drilling Service Co. v. City of Springfield, No. 11889
...unless 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 lig......
-
Mueller v. Abdnor, No. 91-3134
...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, ......
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Tyler v. Whitehead, No. KCD
...to the petition the benefit of every reasonable intendment. Butler v. Circulus, Inc., 557 S.W.2d 469, 472 (Mo.App.1977); Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); Associated Grocers' Co. of St. Louis, Mo. v. Crowe, 389 S.W.2d 395, 399 (Mo.App.1965). The petition under the challenge......