Hahn v. Hahn

Decision Date14 January 1957
Docket NumberNo. 45484,45484
PartiesCarl K. HAHN, Respondent, v. Corinne F. HAHN, Appellant.
CourtMissouri Supreme Court

Cedric Siegfried, Independence, and Walter A. Raymond, Kansas City, for appellant.

David W. Barry, Eugene G. Wetzel and Meyer, Smith, Wetzel & Barry, Kansas City, for respondent.

STORCKMAN, Judge.

This partition action, brought by the plaintiff against his former wife, involves residence property jointly owned by them while they were married. By her cross action defendant sought to have an equitable lien imposed on her former husband's interest in the property on the theory that she had made payments of principal and interest on a deed of trust encumbering the property and had paid the cost of repairs and improvements at plaintiff's request and in reliance upon his promise to repay her the amount of money so advanced out of his share of the property. The issues in the partition suit were not contested. The hearing on the cross action, tried by the court without a jury, resulted in a judgment adverse to the defendant. She appealed to the Kansas City Court of Appeals where her appeal was dismissed as premature without a consideration on the merits. Hahn v. Hahn, Mo.App., 287 S.W.2d 337. Because of this holding we granted defendant's application to transfer the appeal to this court. Plaintiff will sometimes be referred to as Mr. Hahn and the defendant as Mrs. Hahn.

The parties were married on October 15, 1928. In 1938 they purchased the property in question and took title in both their names, as husband and wife. They executed a promissory note for the balance of the purchase price and, as security, gave a deed of trust on the property in favor of Home Owners Loan Corporation. On August 9, 1954, the balance due on this obligation was $870.72. Mrs. Hahn secured a divorce from her husband on October 23, 1952, and thereafter Mr. Hahn borrowed from a Mr. Klapmeyer $2,200 to pay an allowance to Mrs. Hahn in the sum of $2,000 as lump sum alimony and her attorney's fees in the amount of $200. This obligation, secured by a deed of trust on Mr. Hahn's interest in the property, was wholly unpaid at the time of trial. Mr. Hahn filed his action in partition April 13, 1953.

In a conference before the court at the beginning of the trial on July 15, 1954, counsel for the parties agreed that the real estate was not capable of division in kind and that an order of sale should be made and that the balance due on the principal of the HOLC loan with interest thereon should be paid out of the proceeds. The court and counsel then agreed that 'plaintiff's prima facie case of partition has been made' and that 'the only issue is the division of the proceeds.' Counsel for Mr. Hahn suggested that the 'defendant has become plaintiff and the plaintiff has become defendant, and I propose to have the court require that the defendant proceed with the action.' The court concluded the conference with the statement: 'I think that with those agreements there is a case made for the plaintiff, and it is a question on the cross action not.'

The defendant then proceeded without objection. Mrs. Hahn testified on her own behalf with respect to the payments she claimed she had made on the premises and for which she was asking an equitable lien, the details of which are not presently important. In the course of her testimony plaintiff objected on the ground that the payments for repairs and improvements on the property had not been pleaded. The defendant obtained leave to amend her pleadings and further hearing of the case was continued to September 8, 1954.

Further, on July 15, 1954, the court entered its judgment ordering a sale of the property in the partition action and appointing a special commissioner for that purpose. The judgment recited that 'all parties waive the right to appeal from said order and judgment and consent that said property may be advertised and sold as expeditiously as possible.'

On August 30, 1954, the court entered its order approving the special commissioner's sale of the property for the total sum of $14,325. The order recited that the parties had agreed in writing that the existing mortgage encumbrances on the property should be paid out of the proceeds of the sale and it was so ordered. Expenses of the sale, the fee of the special commissioner, plaintiff's attorney fees and other items were also ordered paid out of the proceeds of the sale. The judgment then recited 'that said Special Commissioner shall hold and retain subject to the further order of this Court all of the remainder of the proceeds of said sale.'

Amended pleadings having been filed, the hearing of the cross action was resumed on September 8, 1954. Mrs. Hahn testified further and at the conclusion of her case the plaintiff filed his written motion in which he moved the court to enter judgment in favor of plaintiff on the defendant's cross action.

Plaintiff's motion was sustained and the court entered its judgment concluding: 'Therefore, it is ordered and adjudged by the Court that defendant Corinne F. Hahn have and recover nothing on her cross petition, and that plaintiff recover of said defendant costs incurred in this behalf, and that execution issue therefor.'

The Kansas City Court of Appeals raised and decided the prematurity of the appeal sponte sua. When the motion for rehearing was filed the appellant was joined by the respondent in asking for a review on the merits. It is the right and duty of an appellate court to determine the question of its appellate jurisdiction, even though not raised by the parties, in order to repress unnecessary appeals. However, when permissible, the court should avoid the disposition of appellate cases on procedural grounds. Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 659; 42 V.A.M.S. Supreme Court Rule 1.28; Section 506.010 RSMo 1949, V.A.M.S.

Section 510.180 permits the consolidation of actions and further provides that 'the court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counter-claim, or third-party claim, or any separate issue or of any number of claims, cross-claims, counter-claims, third-party claims, or issues.'

Section 512.020, the general appeal section, provides for appeals from any interlocutory judgment in partition 'which determine the rights of the parties, or from any final judgment in the case.'

Supreme Court Rule 3.29 deals with the right of appeal of separate judgments in jury cases and in cases tried before the court without a jury. So far as applicable here, the rule provides: 'When a separate trial of any such claim is had before the court without a jury, the court may order a separate judgment entered which shall be deemed a final judgment for the purposes of appeal within the meaning of Section 126 [Sec. 512.020] or the court may enter a separate interlocutory judgment and order it held in abeyance until other claims, counterclaims or third party claims in the case are determined, in which event appeal shall not lie until a complete judgment disposing of all claims is entered. In case a separate final judgment is entered the court may stay its enforcement until other or all final judgments in the cause are entered and may prescribe such conditions as are necessary to secure and protect the relative rights of all parties.'

The question as to when a trial court's judgment is mature for purposes of appeal has been considered in many cases in recent years. It would serve no useful purpose to review the decisions here. That has been done many times before and perhaps most recently in Pizzo v. Pizzo, Mo., 295 S.W.2d 377, by the court en banc. This case is the latest pronouncement of this court on the subject matter. It discusses Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343, cited by the appellant, as well as other cases.

The Pizzo case was an action in five counts. Three related counts, involving title to real estate, were tried together by the court and a separate judgment was rendered on each count in favor of the plaintiff and against the defendants. In deciding that the judgment was final for purposes of appeal, this court stated, 295 S.W.2d 381: 'The record indicates the exercise of discretion in favor of a separate judgment and nothing appears to indicate an intention that the judgment should be interlocutory or that its enforcement should be stayed, 'until other or all final judgments in the cause are entered.' In such situation we think the separate judgment entered on these counts should be construed as an order for a separate judgment within the meaning of Supreme Court Rule 3.29 and, accordingly, it must 'be deemed a final judgment for the purposes of appeal within the meaning of' Section 512.020 RSMo 1949, V.A.M.S. If the trial court wanted this judgment to be interlocutory or held in abeyance, or its enforcement stayed, it should have so provided.'

The judgment entered on defendant's cross action has all the formal attributes and appearance of a final judgment. It was not denominated 'a separate interlocutory judgment' nor did the court 'order it held in abeyance.' The record discloses that there were no 'other claims, counterclaims or third party claims in the case' to be determined. See Rule 3.29. That the cross action was the only remaining live issue in the case is also apparent from the statements of the court and counsel made on the first day of the hearing. We hold that it is a final judgment for purposes of appeal. Again, in the language of the Pizzo case, we say: 'If the trial court wanted this judgment to be interlocutory or held in abeyance, or its enforcement stayed, it should have so provided.'

Whether the appeal is justified as an interlocutory judgment in partition under Sec. 512.020 need not be considered in view of our holding. It may be noted, however, that the section allows an appeal 'from any interlocutory judgments in...

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