First Nat. Bank of Kansas City v. Kavorinos
| Decision Date | 14 November 1955 |
| Docket Number | No. 1,No. 44744,44744,1 |
| Citation | 283 S.W.2d 452 |
| Parties | FIRST NATIONAL BANK OF KANSAS CITY, Missouri, and Arthur Mag, Executors and Trustees under the Last Will and Testament of Lettie B. McIlvain, Deceased, Respondents, v. James KAVORINOS, Marion D. Waltner, Esther L. Purdome (Formerly Esther L. Rimann) Administratrix of the Estate of W. C. Rimann, deceased, and Frank Kavorinos, Appellants |
| Court | Missouri Supreme Court |
Clarence C. Chilcott, Kansas City, for appellants James Kavorinos, Frank Kavorinos and Marion D. Waltner.
Don G. Stubbs, R. S. McKenzie, Stubbs, McKenzie, Williams & Merrick, Kansas City, for appellant Esther L. Purdome.
Landry Harwood, Kansas City, for respondents.
This is an appeal from a judgment entered by the court, on motion of plaintiffs and after the issuance and service of summons on defendant and his sureties (appellants here), on two appeal bonds theretofore filed in an unlawful detainer case. One of these appeal bonds, for the principal sum of $2,500, was filed in the justice court and the other for $12,000 was filed in the circuit court.
The judgment now appealed from was entered December 10, 1954, subsequent to the affirmance by this court of a final judgment for plaintiffs for $11,000 in the unlawful detainer action, July 12, 1954. First National Bank of Kansas City v. Kavorinos, Mo.Sup., 270 S.W.2d 23.
The transcript on this appeal shows only the motion for judgment on the two appeal bonds in question, the order of the court for the issuance of summons to defendant and his sureties, the motions of appellants for judgment on the pleadings and to strike plaintiff's-respondent's motion for judgment on the bonds, the trial court's rulings thereon, the subsequent answers of the defendant and his sureties and the evidence offered by plaintiffs in support of their motion. The evidence consisted only of the opinion of this court, as filed on July 12, 1954, in the case of First National Bank of Kansas City v. Kavorinos, supra, the mandate of this court in said cause, Section 512.100 RSMo 1949, V.A.M.S., the two bonds upon which judgment was sought and the motion for judgment itself. It further appears from the record that the motion was filed in the circuit court of Jackson County in case No. 510,860, which is the number given to the original unlawful detainer suit when it first reached the circuit court. While the transcript is incomplete in many respects, the essential facts upon which this appeal turns are not in dispute, as is evident from a reading of the pleadings and briefs filed.
As stated, the original action, at the conclusion of which the judgment appealed from was entered on motion, was an action in unlawful detainer. The action was instituted before D. P. Strother, a justice of the peace, in Kaw Township, Jackson County, on November 3, 1945, to recover possession of premises located at 3924 Main Street in Kansas City. The original plaintiff, Lettie B. McIlvain, is now deceased and her executors and trustees under her will have been substituted and are the present plaintiffs-respondents.
The original cause in unlawful detainer was before this Court en Banc on three occasions. McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349; McIlvain v. Kavorinos, 361 Mo. 749, 236 S.W.2d 322; First National Bank of Kansas City v. Kavorinos, Mo.Sup., 270 S.W.2d 23. It was twice before the Kansas City Court of Appeals. McIlvain v. Kavorinos, Mo.App., 202 S.W.2d 103; McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85.
The motion for judgment on the appeal bonds alleged that subsequent to the institution of the original action and, on or about April 10, 1946, judgment was entered for plaintiff by the said Justice of the Peace for $1,020 and $170 rent and profits from said date to date of restitution; and that defendants appealed to the circuit court of Jackson County and filed an appeal bond for $2,500. In support of this allegation, plaintiffs-respondents offered in evidence Exhibit 4, as follows:
Before
D. P. Strother
Justice of the Peace
District, Kaw Township
Jackson County, Missouri.
Antone Kavorinos, Bessie Kavorinos, James Kavorinos, Dean
Kavorinos, doing business as Rinor's Cafe, Defendants
'State of Missouri
'County of Jackson} §§
'We, the undersigned, Antone Kavorinos, Bessie Kavorinos, James Kavorinos, Dean Kavorinos, as principals and Marion D. Waltner as surety acknowledge ourselves indebted to Lettie B. McIlvain in the sum of Twenty-five Hundred and no/100 Dollars, to be void upon the following conditions:
'Whereas, Antone Kavorinos, Bessie Kavorinos, James Kavorinos, Dean Kavorinos, d/b/a Rinor's Cafe have appealed from the judgment of D. P. Strother, a Justice of the Peace, in an action in alleged unlawful detainer between Lettie B. McIlvain plaintiff and Antone Kavorinos, Bessie Kavorinos, James Kavorinos and Dean Kavorinos, doing business as Rinor's Cafe, defendants.
'Now, if on such appeal, the judgment of the Justice be affirmed, or if on the trial anew in the appellate court judgment be given against the appellant, and they shall satisfy such judgment, or if this appeal shall be dismissed, and they shall pay the judgment of the Justice, together with the costs of appeal, then this recognizance shall be void; otherwise to remain in full force.
'James Kavorinos
'Antone Kavorinos
'Dean Kavorinos
'Bessie Kavorinos
'Marion D. Waltner
'Approved this 13 day of April, 1946.
'D. P. Strother
'Justice of the Peace.'
After this bond was filed and approved and the cause appealed to the circuit court, a trial was had and a judgment was again entered for plaintiff. Defendants then took an appeal to the Kansas City Court of Appeals, where the judgment was reversed and the cause remanded. McIlvain v. Kavorinos, 202 S.W.2d 103. On re-trial in the circuit court judgment was again entered for plaintiff and a further appeal had to the Kansas City Court of Appeals. When this appeal was taken to the Kansas City Court of Appeals, the defendants filed in the circuit court a supersedeas bond in the sum of $12,000. This is the second bond involved in this proceeding, being plaintiff's exhibit 3, as follows:
'Appeal Bond
'Know all men by these presents, that we James Kavorinos and Bessie Kavorinos, partners doing business as Rinor's Cafe, as principal, and W. C. Rimann of Kansas City, Mo. and Frank Kavorinos of Kansas City, Mo. as sureties, are held and firmly bound unto Lettie B. McIlvain in the sum of Twelve Thousand ($12,000) Dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors, jointly and severally, firmly by these presents.
'The condition of the above obligation is such that whereas Lettie B. McIlvain has in the Circuit Court of Jackson County, State of Missouri, in the above entitled cause therein pending recovered a judgment against the said James Kavorinos and Bessie Kavorinos, doing business as Rinor's Cafe and whereas the above-named appellants have, according to law, taken an appeal from the said judgment.
'Now, Therefore, if the said appellant shall satisfy the said judgment in full together with costs, interest and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and shall satisfy in full such modification of the judgment and such costs, interest and damages as the appellate court may adjudge and award, or if the said judgment be set aside, then this obligation shall be void; otherwise to remain in full force and effect.
'Sealed with our seals and dated at Kansas City, Missouri, this day of November, 1947.
'Bessie Kavorinos (Seal)
'James Kavorinos (Seal)
'Principal
'W. C. Rimann (Seal)
'Frank Kavorinos (Seal)
'Sureties
'Approved this 26 Day of November, 1947
'This bond conditioned also that defendants shall present their appeal with effect and without delay, neither commit nor suffer to be committed any waste or damage on the premises whereof restitution is adjudged pay all rents and profits, damages and costs that may be adjudged against them and shall otherwise abide the judgment of the Court.'
By stipulation of the parties it appears that an order was duly entered of record in the circuit court in Case No. 510,860 approving the above $12,000 appeal bond filed by defendants with W. C. Rimann and Frank Kavorinos as sureties thereon.
As stated, the cause was appealed to the Kansas City Court of Appeals, which court would have affirmed the judgment, see McIlvain v. Kavorinos, Mo.App., 212 S.W.2d 85, but the cause was transferred to this court, where the judgment of the circuit court was reversed and the cause remanded. McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349.
A further trial was had in the circuit court and a judgment was again entered for plaintiff and a further appeal was had to this court where the judgment was reversed and the cause remanded. McIlvain v. Kavorinos, 361 Mo. 749, 236 S.W.2d 322. Thereafter, a further trial was had in the circuit court, a judgment was again entered for plaintiff and a further appeal had to this court and the final judgment affirmed, First National Bank of Kansas City v. Kavorinos, 270 S.W.2d 23.
A copy of the final judgment, as entered in the unlawful detainer action, on March 24, 1953, and as later affirmed in this court on July 12, 1954, does not appear from the transcript on this appeal, although the opinion of this court (which was in evidence) states that the judgment was for plaintiffs for $11,000.
Thereafter, as stated, plaintiffs-respondents filed their motion in the circuit court of Jackson County for judgment on the two appeal bonds hereinbefore set out and the appellants were duly notified and they raised timely objections, but the court entered judgment, in part, as follows: ...
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