Hagemann v. Pinska, 21486.

• Decision Date: 07 April 1931
• Docket Number: No. 21486.,21486.
• Citation: 37 S.W.2d 463
• Parties: HENRY HAGEMANN, RESPONDENT, v. BARBARA PINSKA ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

37 S.W.2d 463

HENRY HAGEMANN, RESPONDENT, v. BARBARA PINSKA ET AL., APPELLANTS.

No. 21486.

St. Louis Court of Appeals. Missouri.

Opinion filed April 7, 1931.

Appeal from the Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

AFFIRMED.

Nolan & Garvey for appellants.

(1) A judgment for "support and maintenance of minor children" is a final judgment and becomes a lien on the real estate of the person against whom it is rendered, situate in the county where the judgment is rendered, from the time of its rendition, and takes priority over encumbrances or conveyances of said real estate thereafter made while such judgment is unsatisfied. Secs. 1555, 1556, R.S. 1919; Bank of Mo. v. Wells & Bates, 12 Mo. 361; Davis v. Owensby, 14 Mo. 170, l.c. 177; Haeussler v. Scheittin, 9 Mo. App. 303; Babb v. Graham, 15 Mo. App. 296; Endres v. Hadeler, 220 S.W. 1002; Sterling v. Parker-Washington, 185 Mo. App. 209; Griffiths v. Griffiths, 180 S.W. 411, l.c. 412; Wallace v. Wallace, 201 Ill. App. 323; Goff v. Goff, 60 S.W. Va. 9, l.c. 21; Isaacs v. Isaacs, 117 Va. 728; Stay v. Stay, 41 N.J.E. 373; Buffalo Sav. Bank v. Hunt, 118 N.Y. Supp. 1021; Freeman on Judgments, vol. 2, p. 1925, sec. 915. (1a) A judgment for "support and maintenance of minor children" is not a judgment for "alimony from year to year," as comprehended in section 1807, Revised Statutes 1919. Lukowski v. Lukowski, 108 Mo. App. 204; Dolloff v. Dolloff, 67 N.H. 512; Pope v. Pope, 13 Tex. C. App. 99. (2) Under the pleadings and the admitted facts as to count one, on which the trial court issued its temporary injunction and upon which it based its ruling making the injunction permanent, the defendant was entitled to judgment dissolving the injunction, since, under the facts and the law, there was no right in the plaintiff to injunctive relief. Authorities cited under Points 1 and 1-a. (3) An action in ejectment is an action at law, and unless converted into one of equity by the pleading of equitable defenses thereto, calling for equitable relief, is triable to a jury. The defendant did not waive her right to jury trial on count two by proceeding to trial on count one, which was an equity proceeding, and the record is devoid of any evidence of waiver. The court simply made its findings and judgment on count two the law action, using the same evidence introduced in the trial of count one. Barada-Ghio R.E. Co. v. Keleher, 214 S.W. 961; Chilton v. Chilton, 297 S.W. 457; Joplin S. Bank v. Heaton, 180 S.W. 19; Reckendorfer v. Roberts, 170 Mo. App. 176, 155 S.W. 495.

Louis Martin Wolf and Henson & Woody for respondent.

(1) A judgment to be a lien on real estate must be final, capable of collection by execution against the debtor's property, be rendered by a validly constituted court, and be for the payment of a definite and certain sum of money. A judgment to be paid in future installments is not a lien except for installments as they become due and payable. 23 Cyc. 1359; 34 C.J. 570; 15 R.C.L., p. 794, sec. 249; Black on Judgments, sec. 407; Freeman on Judgments, sec. 340; Bird v. Murphy (Cal.), 256 Pac. 258; Scott v. Scott (Kan.), 103 Pac. 1005; McGill v. McGill (Kan.), 166 Pac. 500; Frey v. Johns, Sheriff et al. (Kan.), 210 Pac. 1107; Campbell v. Trosper (Ky.), 57 S.W. 245; Beesley v. Badger (Utah), 240 Pac. 458; Mansfield v. Hill (Oregon), 107 Pac. 471, 108 Pac. 1007; Appeal of Kerr, 92 Pa. 236; State ex rel. v. Kline, 140 Mo. 502; Barry v. Neissen (Wisc.), 90 N.W. 166; Hagan v. Chapenan (Del.), 41 Atl. 974; Olin v. Hungeford, 10 Ohio 268; Hamlin v. Heallister, 7 Ohio 161; Peeke v. Fitzpatrick, 74 Ohio 396; Vincent v. Watson, 40 Pa. 306; Kerr v. Kerr, 216 Pa. 641. (2) The right of trial by jury is a right that may be waived. Defendant did not ask for a jury on the ejectment count, did not object or except to the action of the court in trying the issues on that count, but participated in the trial thereof. By doing this, she waived her right to a jury in the trial court, and she cannot now complain that she was not accorded a jury. Munford v. Keet, 71 Mo. App. 537; Kansas City v. Woerishoeffer, 249 Mo. 22-24; Merril v. St. Louis, 83 Mo. 251-252; Kansas City v. Smart, 128 Mo. 292-293; Kahn v. Mutual Ins. Co., 150 Mo. App. 393, l.c. 401; Chicago, etc., Ry. Co. v. Town Site Co., 103 Mo. 451, l.c. 470; Nishnabotna Drainage Dist. v. Campbell, 154 Mo. 151. (3) On the equity branch of this case this court will defer to the findings of the chancellor. Woods v. Woods, 13 S.W. (2d) 569, l.c. 573, and cases cited; Sexton v. Gordon, 291 S.W. 512; Bank of Moberly v. Meals, 316 Mo. 1158, 295 S.W. 73. On the ejectment branch, the finding of the court, sitting as a jury, is binding on this court and it cannot consider the evidence in the case de novo. Can consider such as is favorable to respondent. Phillips v. Wilson, 298 Mo. 186, 250 S.W. 408; Munday v. Knox, 9 S.W. (2d) 960.

BENNICK, C.

This is a suit in two counts, the first for an injunction to restrain the sale of certain land under an execution, and the second in ejectment.

Defendant Barbara Pinska is the divorced wife of one Otto Pinska, who was the owner of certain real estate located in St. Louis county, which is involved in this proceeding. The decree of divorce was rendered in favor of defendant Barbara Pinska, in the circuit court of St. Louis county, on February 21, 1928, and by its terms she was awarded the sum of $3,000 as alimony in gross, and was given the custody of the two minor children, Edward and Barbara. Satisfaction of the judgment for alimony in gross was duly acknowledged by Mrs. Pinska on March 17, 1928, and that feature of the judgment no longer figures in the case.

The original decree of divorce made no provision for the support and maintenance of the minor children; and at the September, 1928, term of court, Mrs. Pinska, filed her motion, calling the attention of the court to the fact that the decree was silent in that respect, and asking that the father be ordered and directed to pay her a fair and reasonable amount for such purpose, and that the decree of divorce be modified accordingly. On October 27, 1928, the motion was sustained, and it was ordered by the court that "said defendant (Barbara Pinska) have and recover of said plaintiff (Otto Pinska) the sum of $10 per week for the support and maintenance of said minor children, said order to take effect forthwith, and that said defendant vacate the premises belonging to plaintiff."

Seemingly, as a feature of the property settlement entered into at the time of or shortly following the rendition of the decree of divorce, the real property theretofore owned by the parties in the entirety was placed in the sole name of Otto Pinska; and on November 2, 1928, or six days after the modification of the decree so as to require Pinska to make weekly payments for the support of his children, he conveyed the property by warranty deed to Henry Hagemann, the plaintiff herein.

The weekly payments were not made by Pinska as required by the modified decree, and on May 23, 1929, execution for the sum of $280 then due and unpaid was sued out by defendant Barbara Pinska upon the judgment, and placed in the hands of defendant Lill, the sheriff. Levy was thereupon made by the sheriff upon the real estate owned by Pinska at the time of the rendition of the judgment, and thereafter conveyed by him to plaintiff herein, and a sale thereof was advertised.

So much for the undisputed facts of the case, which led to the institution of the present suit on July 6, 1929.

The first count of the petition set up that plaintiff (Henry Hagemann), by virtue of the conveyance from Otto Pinska on November 2, 1928, was the owner in fee simple of the real estate levied upon by the sheriff; that the execution was issued, and the levy made, subsequent to his purchase of the property; that he was the sole owner of the property, and that neither Otto Pinska nor Barbara Pinska had any right, interest, or title thereto; that the sale under execution, if permitted to be made, would cause irreparable damage to him; and that he had no full, adequate, and complete remedy at law to secure the peaceful enjoyment of his property. The prayer was that defendants be enjoined and restrained from selling, or further offering for sale, the real estate in question, and for such other and further orders and judgments touching the premises as to the court should seem just and proper.

The second count of the petition stated the ordinary cause of action in ejectment, alleging that plaintiff was the owner in fee, and entitled to the possession, of the real estate described therein; that defendant Barbara Pinska had entered into possession of the premises, and was withholding the possession thereof from plaintiff to his damage in the sum of $2,000; and that the reasonable rental value of the premises was $40 a month. Plaintiff prayed for judgment against Barbara Pinska for the possession of the premises; for the sum of $2,000 as damages for the unlawful withholding of possession; and for the further sum of $40 a month from the rendition of the judgment until possession was restored to plaintiff.

The separate answer of defendant Lill was, in effect, a general denial; and so also was that of Barbara Pinska, her cross-bill having been dismissed by her counsel at the close of all the evidence.

The entire case was tried to the court alone, resulting, on March 20, 1930, in the entry of a judgment for plaintiff on the first count of his petition, making the temporary injunction theretofore issued permanent, and enjoining and restraining defendants, and each of them, from selling or offering for sale the tract of land levied upon. On the second count of the petition, the court found that plaintiff was entitled to the possession of the premises on November 3, 1928, the date mentioned in the petition; that Barbara Pinska had wrongfully withheld the same; and that plaintiff should have damages...