Geitz v. Blank

• Decision Date: 05 October 1937
• Docket Number: No. 24056.,24056.
• Citation: 108 S.W.2d 1066
• Parties: GEITZ et ux. v. BLANK et al.
• Court: Missouri Court of Appeals

108 S.W.2d 1066

GEITZ et ux. v. BLANK et al.

No. 24056.

St. Louis Court of Appeals. Missouri.

October 5, 1937.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Interpleader suit by Louis J. Geitz and wife against Oscar Blank and others. From a judgment of dismissal and final judgment against plaintiffs, they appeal.

Reversed and remanded.

R. E. Kleinschmidt, of Hillsboro, for appellants.

C. W. Green, of De Soto, and Terry, Terry & Terry, of Festus, for respondents.

HOSTETTER, Presiding Judge.

This suit was begun on the 25th day of July, 1935, with the filing by plaintiffs of a petition, being a bill of interpleader, in the circuit court of Jefferson county, and the deposit of the sum of $112.50 with the clerk of said court.

The petition (caption, signature, and affidavit omitted) is as follows:

"Bill of Interpleader.

"Plaintiffs state that on the 9th day of August, 1934, they leased, by written lease, from the defendant Oscar J. Blank, a certain tract of land, containing 40 acres, more or less, in Lots 22 and 23, of U. S. Survey 2991, in Jefferson County, Missouri, for a term of three years, beginning March 1, 1935, and ending February 28, 1938, at a rental of $225.00 per year, payable at the rate of $112.50 on the first day of July and the first day of November of each year during the term of said lease; that plaintiffs accepted said lease in perfect good faith and took possession of said premises under the belief that the said Oscar J. Blank was then the owner of said premises and entitled to execute said lease; that plaintiffs are still in possession of said premises under said lease but have been unable to pay the rent which was due on July 1, 1935, in the sum of $112.50, for the reason that plaintiffs do not know whether they should pay said rent to said defendant Oscar J. Blank, said lessor, or to the other defendants herein, who are claiming said fund.

"Plaintiffs further state that since said rent became due on July 1, 1935, the defendant Fred J. Blank has demanded said rent from plaintiffs, claiming to own said premises; that said defendant Fred J. Blank apparently does own said premises, by virtue of a warranty deed from Peter Blank, recorded February 2, 1929, in book 110, page 466, in the Recorder's Office of Jefferson County, Missouri, but said defendant, long before said rent was due, knew and was aware of said lease on the part of the defendant Oscar J. Blank and of the possession of these plaintiffs thereunder and knowingly ratified and approved of said lease.

"Plaintiffs further state that on or about the 14th day of June, 1935, they were served by the defendant S. J. Papin, constable of Joachim Township, Jefferson County, Missouri, with a writ of garnishment as to all money, property or effects in their possession belonging to said defendant Oscar J. Blank; that said writ of garnishment was issued in the case of the defendant Jacob Becker vs. said defendant Oscar J. Blank, and for that reason said defendant Jacob Becker is made a party herein; that said defendants Oscar J. Blank, Fred J. Blank and S. J. Papin, as constable aforesaid, are all claiming said rent, and these plaintiffs do not know which one is justly entitled to the same, and for that reason they are herewith paying said rent into this court and asking that said defendants be required to interplead, and plaintiffs submit that said defendants ought to interplead between themselves for said sum of $112.50, plaintiffs paying said sum herewith to the clerk of this Court, to be paid by him to whichever of said defendants this Court may determine to be entitled thereto.

"Wherefore, plaintiffs pray that they may be permitted to go hence without day and be discharged from all further liability to any or all of these defendants on account of said installment of rent which was due July 1, 1935, and that the Court will determine to whom plaintiffs shall pay the future installments of said rent, during the term of said lease, and that the defendants may be restrained by the order and injunction of this Court from further proceeding with said suit so commenced, as aforesaid, and from commencing any other action or actions at law against these plaintiffs in respect to the matters aforesaid, and for such other and further relief as to this Court may seem just and proper."

Defendant Fred J. Blank filed a demurrer to said petition, basing it on the sixth ground set out in section 770, R.S.Mo.1929 (Mo.St.Ann. § 770, p. 1000), to wit: "that the petition does not state facts sufficient to constitute a cause of action."

The trial court sustained the demurrer, and, plaintiffs declining to plead further, the court dismissed the bill and rendered final judgment against them, from which action plaintiffs in due course perfected their appeal to this court.

In determining the correctness or incorrectness of the trial court's ruling on the demurrer we are limited to a consideration of those facts which appear on the face of the petition. Section 770, R.S.Mo. 1929 (Mo.St.Ann. § 770, p. 1000); 49 Corpus Juris p. 420, § 535; Arthur v. Rickards, 48 Mo. 298; Wilson v. King's Lake Drainage & Levee District, 257 Mo. 266, 165 S. W. 734; Noll v. Alexander (Mo.App.) 282 S.W. 739, loc. cit. 740; Baldridge v. Ryan (Mo.App.) 260 S.W. 536, loc. cit. 537.

No bill of exceptions was filed or was necessary to be filed, and only the record proper is before us.

Section 770, R.S.Mo.1929 (Mo. St.Ann. § 770, p. 1000), in so far as it applies to the instant case, reads as follows: "The defendant may demur to the petition, when it shall appear upon the face thereof * * * that the petition does not state facts sufficient to constitute a cause of action." (Italics are ours.)

All matters contained in the petition, which are properly pleaded, are, for the purpose of considering the demurrer, taken as true. Therefore the extrinsic matters urged by counsel for defendants in their brief not appearing upon the face of the petition cannot be considered by us. Matters may have developed in the oral arguments on the demurrer in the trial court as set out in the brief to the effect that Oscar J. Blank is a son of Fred J. Blank; that Oscar J. Blank (lessor) was adjudicated a bankrupt, which precluded certain of the defendants from asserting any claim to the $112.50; and that the trustee in bankruptcy, who had charge of the estate of Oscar J. Blank, should have been made a party, but these matters are wholly foreign to the question involved in this appeal. We must measure the bill of interpleader by the allegations contained therein, by what appears "upon the face" of the petition. Matters which might be fatal to the plaintiff's case, not appearing on the face of the petition, cannot be raised by demurrer, but by answer.

Analyzing and cataloguing the allegations of the petition, we find that plaintiffs owed the installment of $112.50 as rent due July 1, 1935, on a written lease for a term of three years, executed by the defendant Oscar J. Blank; that the defendants (and there are four of them) are all claiming said fund and that the plaintiffs have been served with a writ of garnishment by the defendant S. J. Papin, as constable, in a suit against said Oscar J. Blank and instituted by the defendant, Jacob Becker, and that plaintiffs do not know which of said claimants is lawfully entitled to said rent; that the...