Geopfert v. Page

• Decision Date: 17 February 1930
• Docket Number: No. 4660.,4660.
• Citation: 24 S.W.2d 699
• Parties: GEOPFERT v. PAGE.
• Court: Missouri Court of Appeals

24 S.W.2d 699

GEOPFERT v. PAGE.

No. 4660.

Springfield Court of Appeals. Missouri.

February 17, 1930.

Appeal from Circuit Court, Oregon County; Hon. E. P. Dorris, Judge.

"Not to be officially published."

Suit by Herbert Goepfert against H. C. Page. Judgment for plaintiff, and defendant appeals. Reversed and cause remanded for new trial.

Rinehart & Rinehart, of West Plains, for appellant.

Barton & Moberly, of Houston, for respondent.

BAILEY, J.

Plaintiff instituted suit by attachment to recover on a written contract involving the sale to defendant of certain standing timber on a 1,400-acre tract of land in Oregon county, Mo. By the terms of this contract plaintiff sold said timber for a consideration of $8,500, to be paid by defendant to plaintiff, as follows: "$5.00 on the 23rd day of February, 1928, and the sum of $2,495.00 on or before March 1st, 1928, and $2,000.00 when one-quarter of the timber was cut and $2,000.00 when one-half of the timber was cut and $2,000.00 more when three-quarters of the timber was cut." The petition alleged that defendant paid the $5 and the further sum of $2,495, as provided in said contract, but that defendant "refused to pay the further sum of $2,000.00 when one-quarter of the timber had been cut."

It was further alleged that, after the written contract had been signed, plaintiff and defendant had entered into a parol contract to the effect that defendant should begin cutting timber at the southwest corner of a certain section of said land, and would cut "one-fourth of said timber in a compact body," and that defendant would then pay plaintiff $2,000, as specified in the written contract; that defendant failed to comply with said parol contract, but cut and hauled away the best and most valuable timber from different parts of said 1,400-acre tract; that plaintiff duly performed all the conditions of the contract. Judgment was prayed in the sum of $6,000, being the whole amount of the unpaid portion of the consideration provided in the written contract. Defendant filed a motion to dissolve the attachment, which motion was overruled. Defendant then filed a plea in abatement attacking the jurisdiction of the court, which was likewise overruled.

In this connection the sheriff, on plaintiff's motion, was permitted to amend his return over defendant's objection. Defendant also filed an answer (whether before or after the filing of the plea in abatement the record fails to show), admitting the purchase of said tract of timber according to the terms of the written contract, but denying each and every other allegation contained in plaintiff's petition. Trial was had to a jury, resulting in a verdict for plaintiff in the sum of $6,000, from which judgment defendant has appealed.

Defendant first assigns as error the action of the trial court in overruling defendant's plea in the nature of a plea in abatement. Plaintiff counters this with the proposition that defendant went to trial on the merits without filing a motion for new trial on the plea in abatement, and that there is therefore nothing before this court for review as to the plea in abatement. The record in this case seems to indicate that no attempt was made to follow the procedure prescribed by section 1766, R. S. Mo. 1919, in relation to the orderly conduct of suits by attachment. The record shows that the plea in abatement was overruled, but no motion for new trial was filed in relation thereto, and no judgment was at the time entered sustaining the attachment, as contemplated by said section 1766. Upon the overruling of the plea in abatement, defendant proceeded to trial on the merits upon an answer which may have been filed before the filing of the plea in abatement, in so far as the record discloses.

It appears that there was a separate trial of the plea in abatement, based upon testimony adduced in support of plaintiff's motion to amend the sheriff's return, but there was only one judgment. This judgment was rendered after the verdict of the jury on the merits, and by it the court sustained the attachment, and also found for plaintiff on the merits. This was irregular, because the statute provides for two judgments, one on the plea in abatement and one on the merits. The statute (section 1766, supra) also seems to contemplate that, after the trial court shall have found against defendant on the plea in abatement, defendant must then file a motion for new trial, which the trial court may overrule, and then render a judgment sustaining the attachment, from which judgment defendant may appeal, but only after the trial upon the merits. Failure to file such motion is, we think, equivalent to waiver of the plea in abatement, and therefore no question in relation thereto is properly before this court. Schafer v. Roberts, 166 Mo. App. 68, 148 S. W. 393; Alexander v. Wade, 107 Mo. App. 321, 80 S. W. 917; In re Fields' Estate (Mo. App.) 6 S.W.(2d) 68, loc. cit. 70, 71.

It is urged that the court erred in...