Gold Lumber Co. v. Baker, 17345.

• Citation: 46 S.W.2d 189
• Decision Date: 11 January 1932
• Docket Number: No. 17345.,17345.
• Parties: GOLD LUMBER CO. et al. v. BAKER et al.
• Court: Missouri Court of Appeals

46 S.W.2d 189

GOLD LUMBER CO. et al. v. BAKER et al.

No. 17345.

Kansas City Court of Appeals. Missouri.

January 11, 1932.

Rehearing Denied February 1, 1932.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be officially published."

Action by the Gold Lumber Company and others against Russell W. Baker, M. T. Slane, and others. From the judgment for plaintiffs, Slane appeals.

Affirmed.

H. K. Bente, of Sedalia, for appellant.

H. T. Williams, of Sedalia, for respondents.

BOYER, C.

Equitable action to adjudge liens, interests, and priority of liens. This is the third appearance of the above case in the appellate courts of our state. The first was upon the appeal of defendant Slane and another to the Supreme Court, where it was determined that jurisdiction belonged here. 324 Mo. 984, 25 S.W.(2d) 457. This court disposed of the appeal as shown by its opinion reported in 36 S.W.(2d) 130. Reference is made to the previous reports of the case for a statement of the nature of the action, the issues, facts, conclusions, and original judgment of the trial court, to avoid, as much as possible, reiteration. Briefly, and for the purpose of considering this appeal, it will be observed that defendant Slane, who is appellant here, was the owner of a deed of trust executed February 19, 1926, on the real estate in question to secure a debt of $1,200. There was another subsequent deed of trust on the same property to secure the sum of $135. Plaintiffs and a defendant were mechanics' lien claimants. As interpreted by the Supreme Court in its opinion, 324 Mo. loc. cit. 986, 25 S.W.(2d) 457, 458: "The controversy involves the questions only of payment on the Slane note and priority as between liens." As set forth in the opinion of this court, 36 S.W.(2d) 130, 133, the trial court found that, on account of payments made to Slane, the debt secured by the deed of trust to him had been reduced so that only $30 of that debt remained unpaid. This court approved that finding and others made by the chancellor, and concluded that such findings were supported by the greater weight of the evidence. The holding of the trial court was approved to the effect that the lien of claimants was superior to the lien of the deeds of trust upon a new house erected on the ground, and that the deeds of trust were liens upon the ground superior to the liens of the claimants. However, that part of the judgment of the trial court wherein it was ordered that the house and lots be sold together and the proceeds apportioned was not approved, for the reason that such sale would amount to a premature and compulsory foreclosure of the deeds of trust, the notes secured by them not being due at the time; and it was held that lien claimants could enforce their liens against the new house and the equity of redemption in the lots, but could not compel the foreclosure of the deeds of trust. The opinion of the court concludes with these words: "The judgment is reversed and the cause remanded, to be proceeded with as herein indicated."

The mandate of this court was filed in the trial court February 28, 1931, and during the regular February, 1931, term thereof. Thereafter, and at the succeeding May, 1931, term of said court, the plaintiffs in the case, respondents here, filed their motion to modify the judgment and order of sale originally made in said case so as to conform to the opinion and mandate of this court. Thereafter appellant, Slane, filed his separate second amended answer setting up new matter bearing upon the amount claimed to be due him under the deed of trust securing $1,200, and setting forth the claim that he had expended the total sum of $1,134.60 for repairs or improvements to the house in pursuance to an agreement with the owners of the property, that he was then the owner of the notes secured by said deed of trust, and prayed the court to decree same to be a first lien upon the property described by it superior to all the mechanics' liens. Plaintiffs objected to the filing of said answer.

Thereafter the trial court upon consideration of the motion to modify its judgment and of the amended answer of Slane struck said amended answer from the files on motion of plaintiffs and sustained the motion to modify the court's judgment to conform to the mandate and opinion of this court. It is recited in the finding, order, and judgment then entered that Slane was the owner and holder of the notes secured by the deed of trust in question, and that defendant Hirtl had no interest in the case. The previous order of sale was set aside and a new sale ordered; the sheriff was directed to sell the dwelling...