Graves v. Davidson

• Decision Date: 23 February 1934
• Citation: 68 S.W.2d 711,334 Mo. 882
• Parties: James C. Graves and Louis W. Stolte v. Elmer Davidson, Joseph Davidson and Mary A. Davidson, Appellants
• Court: Missouri Supreme Court

68 S.W.2d 711

334 Mo. 882

James C. Graves and Louis W. Stolte v. Elmer Davidson, Joseph Davidson and Mary A. Davidson, Appellants

Supreme Court of Missouri

February 23, 1934

Appeal from Pike Circuit Court; Hon. Edgar B. Woolfolk Judge.

Affirmed.

Roy Hamlin and F. D. Wilkins for appellants.

(1) We recognize the rule that the granting of a continuance is a matter resting in the sound discretion of the trial court but the rule also is that the trial court has no right to arbitrarily refuse a continuance where there has been diligence in preparing for trial and there are good reasons shown for the absence of the only counsel in the case familiar with the facts and when it would work injustice or oppression upon the party asking for the continuance. The reasons above set out given by the trial court for overruling said motion shows that the court overlooked and disregarded the sworn affidavit of the defendants that their only counsel familiar with the facts in the suit was absent and unable to attend the trial of this cause for the reason that he was in attendance in the United States District Court sitting at Hannibal, in civil suits which were then set for trial in said United States District Court; but took the statement of opposite counsel that said attorney was absent and engaged in the defense of prohibition cases that were then pending in the United States District Court notwithstanding that the sworn affidavit of the defendants stated that said counsel was engaged in civil cases in said court. This was an abuse of the court's sound discretion and worked oppression and injustice upon the defendants. Noah v. Price Mercantile Co., 231 S.W. 300; Laun v. Ponath, 105 Mo.App 203. (2) The court should have sustained the defendants' application for substitution of another judge in place of the trial judge, application therefor being duly and timely filed. (3) The court erred in refusing to give defendants' instruction in the nature of a demurrer at close of plaintiffs' case. Defendants introducing no evidence. The record recites and such is the fact that there was no breach of the conditions of the promissory note which was secured by the deed of trust, the note was not collectible before the maturity of the same which was March 1, 1930, the interest on the note was not collectible before the maturity of the note. The conditions of the note not having been broken, the deed of trust was not subject to foreclosure, nor could the defendants be dispossessed under the deed of trust before the conditions were broken. The sale under the deed of trust was premature and invalid. Ownings v. McKenzie, 133 Mo. 323; Canton Trust Co. v. Durrett, 9 S.W.2d 925; Wilson v. Reed, 270 Mo. 405; Frye v. Shepherd, 173 Mo.App. 200.

John G. Cable for respondents.

(1) Appellants' application for continuance was properly overruled and constituted no abuse of discretion of trial court. Bank of Raymondville v. Natl. Safe & Lock Co., 184 S.W. 1176; Daugherty v. Lanning-Harris Coal & Grain Co., 205 S.W. 806. (2) Appellants' application for a second change of venue was properly overruled and did not constitute an abuse of discretion of the trial court. R. S. 1929, sec. 907. (3) There is no recital in the record that there was no breach of the terms of the note, there being twenty-one months' interest past due, and this being true, the sale under the deed of trust was proper. Appellants seem to base their objections as though this were an action to recover the balance of the note before due.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Ejectment for about 162 acres of land in Ralls County. The suit was filed in the circuit court of that county which court granted defendants, on their application a change of venue and sent the case to the Louisiana Court of Common Pleas in Pike County, where plaintiffs obtained judgment for possession, monthly rents and one cent damages. All the defendants appealed. Plaintiffs' evidence tended to show the following:

Thurston N. Summers is the common source of title. In July, 1919, he sold and conveyed this land and about ten acres in Marion County to defendant Mary A. Davidson. She paid $ 4000 of the purchase price in cash and for the remainder, $ 15,000, gave a note payable to Summers, secured by deed of trust on the lands so conveyed to her and executed by herself and husband, Joseph M. Davidson, a defendant herein. On September 6, 1929, the Ralls County land was sold under the deed of trust by the trustee therein named, after advertisement as therein provided, and was bid in at the trustee's sale by plaintiff Graves for $ 11,800. By his direction the trustee made his deed to Graves and Stolte as grantees, they having agreed after the sale that Stolte should take a half interest. Rental value of the lands is $ 75 to $ 80 per month.

Plaintiffs claim title and the right to possession through such trustee's sale and deed. Defendants challenge the validity of said sale and deed. Defendant Elmer Davidson is the son of Joseph M. and Mary A. Davidson and claims right to possession as their tenant. Defendants offered no evidence.

Plaintiffs' petition is in the usual form. The answer of Joseph M. and Mary A. Davidson pleads in substance the purchase of the lands from Summers by her and the execution of the deed of trust to secure the $ 15,000 note to Summers for part of the purchase price; that the three defendants are in possession, Joseph M. and Mary A., as owners and Elmer as tenant; that about April --, 1928, Summers, then owner and holder of said $ 15,000 note, died testate and plaintiff Stolte was appointed and qualified as administrator with will annexed of his estate and continued to act in that capacity up to the time of the sale; that "certain" heirs of Summers brought suit to contest his will and "after the filing" of that suit Stolte as such administrator "agreed with the defendant, Mary A. Davidson, that any interest then due and owing by said Mary A. Davidson on her note of $ 15,000 aforesaid would not have to be paid until after the suit contesting said will had been disposed of;" that said Mary A. Davidson, relying on said agreement, proceeded, through her tenant Elmer, to prepare sixty acres of the ground for wheat sowing and to purchase seed and fertilizer, "and sowed said ground to wheat which is now growing on said ground," all with the knowledge of Stolte; that thereafter "and immediately following an adjustment and settlement" of the will contest suit Stolte, as such administrator, "in violation of his agreement with defendant, Mary A. Davidson, and without notice to her," caused the trustee to advertise the land for sale and at the sale purchased it himself for approximately $ 4000 less than the "face value" of the note and $ 5000 less than the market value of the land; that the sale "was illegal, void and of no effect whatever; that there was no legal, proper, valid or sufficient notice given as by law in such cases made and provided."

Elmer Davidson's answer alleged that he had leased the premises "prior to September, 1929," and the lease had not expired, wherefore he claims the right to possession.

I. Appellants' first assignment of error is that the court erred in denying them a continuance. The cause was set for trial for December 3, 1929. On that day and when the case was called for trial defendants, through one of their attorneys, Mr. Wilkins, presented an application for continuance, verified on November 30, by their other attorney, Mr. Hamlin, stating in substance that Mr. Hamlin had certain named cases pending in the Federal Court at Hannibal which were to come up for disposition on December 2nd or 3rd, and because of which he would be unable to attend the Court of Common Pleas during the week beginning Monday, December 2nd, "and there is no other attorney connected with the case that is familiar with the facts, circumstances and evidence to proceed with the trial." No other reason for asking a continuance was stated. The court heard evidence pro and con on the application. The evidence offered by plaintiffs, opposing a continuance, tended to show that Mr. Hamlin's presence was not required at Hannibal that day and that as Hannibal was only twenty-six miles from Louisiana he could yet get to the latter place in time for the trial that day. Mr. Wilkins, for defendants, testified that he had just called up the deputy clerk of the Federal Court who had informed him that Mr. Hamlin was in attendance there awaiting the call of a certain case in which he was counsel. Mr. Wilkins did not testify whether or not he was familiar with the facts and issues in the case.

It is conceded that the matter of granting a continuance especially for a reason such as that here assigned and where, as here, the party is represented by other counsel whose competency is not questioned, rests largely in the sound discretion of the trial court. Only where it appears that such discretion has been abused to the prejudice of the party seeking a continuance will an appellate court reverse because a continuance was denied. The trial court, in overruling the application in this case, intimated, among other reasons, that he thought Mr. Hamlin could come to Louisiana. Whether that finding was justified or not we are constrained to hold that there was no abuse of discretion in denying the continuance. There was no contention that any material witness was absent. If the alleged facts pleaded by defendants constituted any defense, a question we need not consider, they were not complicated and were within the knowledge of the defendants. If known to others there is no showing that such others were not present as witnesses. It does not appear that Mr. Wilkins had not been employed in the case long...