Ford v. Ford

• Decision Date: 19 February 1930
• Docket Number: No. 28455.,28455.
• Citation: 24 S.W.2d 990
• Parties: FORD v. FORD et al.
• Court: Missouri Supreme Court

24 S.W.2d 990

FORD v. FORD et al.

No. 28455.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by John A. Ford against Martha Ford, administratrix of the estate of Frank Ford, and others. From judgment rendered in favor of some of the defendants, plaintiff appeals.

Appeal dismissed.

Patrick H. Cullen, John C. Vogel, and Taylor R. Young, all of St. Louis, for appellant.

Jeffries, Simpson & Plummer, of St. Louis, for respondents Martha Ford and others.

COOLEY, C.

This is an appeal by plaintiff from the judgment of the circuit court of the city of St. Louis in favor of part of the defendants upon demurrer to plaintiff's petition.

Frank Ford was a brother of John Ford, the plaintiff, and, as alleged in plaintiff's petition, was in partnership with plaintiff for about twelve years prior to and at the time of his death in October, 1924. The business of the partnership is referred to as the magneto business, consisting of the repair of magnetos and is alleged to have been quite successful. Martha Ford is the widow and administratrix of Frank Ford who died intestate. Of the other defendants four are heirs, being the father, brother, and two sisters of plaintiff, two are beneficiaries, and one the trustee in a deed of trust upon certain real estate involved, and two, J. F. Seifert and A. F. Seifert are alleged to be purchasers from Martha Ford of an interest in the personal property claimed to belong to the partnership. In his petition plaintiff claims ownership of one-half of the personal property and also of a half interest in several parcels of real estate which he states was bought with partnership money, title being taken in the name of Frank Ford, but held for said Frank and plaintiff. Plaintiff seeks an accounting of the partnership business and of the rents and profits from the real estate, that he be adjudged the owner of a one-half interest in certain properties and moneys alleged to have belonged to the partnership and a one-half interest in the real estate above referred to, for cancellation of the deed of trust, for $25,000 punitive damages against defendants Martha Ford, J. F. Seifert, and A. F. Seifert, and for other relief.

Plaintiff's suit was filed July 2, 1925, returnable to the October term, 1925, of the circuit court. An amended petition was filed August 21, 1925. The abstract of record does not show whether or not any of the defendants were ever served with process or notified. At the October term, 1925, defendants J. F. Seifert, Martha Ford, administratrix, and Martha Ford, individually, filed demurrers to plaintiff's amended petition, and the father, brother, and sisters of plaintiff filed a joint answer in which they confessed all the allegations of the amended petition and joined with plaintiff in asking for the relief prayed by him. The other defendants made no appearance.

At the December term, 1925, the court sustained the above mentioned demurrers, but no leave to plead further was asked or given, and nothing more was done in the case until the December term, 1926, when, on December 8, 1926, the court entered the following judgment:

"It appearing to the Court, upon motion of the defendants J. F. Seifert, Martha Ford and Martha Ford, administratrix of the estate of Frank Ford, deceased, by attorney, that the separate demurrers to plaintiff's petition were sustained by this Court on the 7th day of December, 1925, and that the plaintiff has failed to plead further, therefore, the Court doth find in favor of said defendants on the pleadings.

"Wherefore, it is considered, adjudged and decreed by the Court that plaintiff's bill be, and is hereby dismissed as to the defendants Martha Ford, Martha Ford, administratrix of the estate of Frank Ford, deceased, and J. F. Seifert; that plaintiff take nothing by his suit in this behalf as to said defendants; that said defendants be discharged, go hence without day and recover of plaintiff their costs herein expended, for which let execution issue."

At the same term but fifty-eight days later, to wit, on February 4, 1927, plaintiff and the four answering defendants filed their joint motion to set aside the judgment of December 8, 1926. No action was taken on that motion at the December term, but, on March 14, at the succeeding February term, 1927, the court overruled the motion, and on March 25, at the same term, plaintiff applied for and was granted an appeal to this court.

The motion to set aside the judgment alleges, in substance, first, that the court had no authority to render final judgment against plaintiff on the demurrer, because it was not joined in by all the defendants, and because four defendants had answered confessing the allegations of the petition, which answer was still on file; second, that the judgment did not dispose of the case as to all of the parties, nor all of the issues; third, affirmative matters not appearing of record or proved, relative to proceedings in the probate court and attempts to settle, because of which plaintiff had refrained temporarily from pressing this suit, but without intending to...