Hays v. Dow

• Decision Date: 08 December 1942
• Citation: 166 S.W.2d 309,237 Mo.App. 1
• Parties: Ella E. Hays, Respondent, v. Kenneth C. Dow and Theona B. Dow, His Wife, Appellants
• Court: Missouri Court of Appeals

166 S.W.2d 309

237 Mo.App. 1

Ella E. Hays, Respondent, v. Kenneth C. Dow and Theona B. Dow, His Wife, Appellants

Court of Appeals of Missouri, St. Louis District

December 8, 1942

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

Appeal dismissed.

John Q. Brown and Richard F. Ralph for appellants.

(1) The judgment entered by the court in favor of plaintiff was a final judgment, although void. State ex rel. v Mulloy, 322 Mo. 281, 15 S.W.2d 809. (2) A void order or judgment made when a court is without power or jurisdiction to award it, is reviewable on appeal. State ex rel. v Hall, 200 Mo. 201, 246 S.W. 35. (3) The filing of the bond prescribed by Sections 1114-1115, R. S. Mo. 1939, is a condition precedent to the entering of a judgment, and the failure to file such bond by plaintiff rendered the judgment void. Ean's Adm'r. v. Bank, 79 Mo. 182; Sauter v. Leveridge, 103 Mo. 615, 620; Hogan v Kaiser, 113 Mo.App. 711, 715; Warder & Co. v. Libby, 104 Mo.App. 141, 78 S.W. (1), 338; Ayler v. McMunigal, 66 Mo.App. 657; Barrows v. Million, 43 Mo.App. 79, 83. (4) Defendants' motion for a new trial should have been sustained because the failure of plaintiff to file the bond prescribed by Sections 1114-1115, R. S. Mo. 1939, and before the motion for a new trial was overruled, rendered the judgment void. (5) Defendants' motion in arrest of judgment should have been sustained for the reason that there was error on the face of the record proper, although the motion was not required as a matter of law. (6) Plaintiff having plead that she acquired ownership of the principal note by endorsement of the payee assumed the burden of proving such endorsement by clear, cogent and convincing evidence. Plaintiff's proof failed. 38 C. J., p. 270; Jones v. Kirk, 270 Mo. 408. (7) Plaintiff alleged ownership of the principal note, by endorsement of it by the payee corporation, thereby assumed the burden of proving that endorsement by clear and convincing evidence and failed to make such proof. The fact, if it be a fact, that a simpler method provided by statute to prove ownership might have been invoked successfully, did not relieve plaintiff of the burden assumed and not discharged. Sieverthorne v. Summit Lumber Co., 190 Mo.App. 716, 727; Dunlap v. Kelly, 105 Mo.App. 1; Hughes v. Moore, 17 Mo.App. 148. (8) There being no evidence that defendants were not acting in good faith in requiring plaintiff to make strict proof regarding a matter affecting the title to their home, it follows there was no justification nor basis for the trial court to assess the costs against defendants and especially upon entering a void judgment against them. 38 C. J., p. 282.

A. H. Kerth and Dalton W. Schreiber for respondent.

(1) Plaintiff's action is one at law. Brannack v. Jaynes et al., 197 Mo.App. 150, 193 S.W. 51; State ex rel. Wyandotte Lodge No. 35, I. O. O. F., v. Evans, 176 Mo. 310, 75 S.W. 914; Smith v. Finn, 77 Mo. 499. (2) Appellants' abstract must present all the evidence where demurrer to evidence is interposed and pressed on appeal. Nichey v. Leader, 235 Mo. 30, 138 S.W. 18; Lyverr v. Rutherford, 80 S.W.2d 731; Ross et al. v. Speed-O Corporation of America et al., 130 S.W.2d 180. (3) The statutes of this State provide that appeals shall lie only from a final judgment in the case. Section 1184, R. S. Mo. 1939; Biedenstein v. Feltz, 156 S.W.2d 29. (4) A judgment upon a lost note is conditioned upon plaintiff giving a bond to the adverse party indemnifying him against loss. Section 1115, R. S. Mo. 1939. (5) The mere ruling of the court or a verdict of a jury where no judgment is entered in accordance therewith does not have the effect of a final judgment and is not reviewable on appeal. Arcadia Timber Co. v. Evans, 304 Mo. 674, 264 S.W. 810; Sperling v. Stubblefield, 83 Mo.App. 266; Mills v. McDaniels, 59 Mo.App. 331; Campbell v. City of Stanberry, 68 S.W. 587; Crabtree v. Bankers Life Ins. Co., 233 Mo.App. 1067, 128 S.W.2d 1089; 3 C. J., "Appeal & Error," pars. 261, 442, pp. 450, 601; 33; C. J., "Judgments," par. 7, p. 1055. (6) If the endorsement of the lost note in question was not expressly authorized by the corporation it was ratified, and, therefore, is the endorsement of the corporation. Madison et al. v. Williams, Sheriff, et al., 16 S.W.2d 626, 629; Austin-Western Road Machinery Co. v. Commercial State Bank, 255 S.W. 585; City of Maplewood v. Johnson, 273 S.W. 237. (7) A presumption of ratification will arise from slight circumstances where an unauthorized act of an agent is clearly beneficial to the corporation. Washington Sav. Bank v. Butchers & Drovers Bank, 107 Mo. 133, 17 S.W. 644, 28 Am. State Rep. 405; City of Maplewood v. Johnson, 273 S.W. 237. (8) The findings of the trial court in a law case are conclusive if there is any substantial evidence in the record to support the judgment. Burgess et al. v. Magess et al., 24 S.W.2d 1042; Hill v. Stealey, 153 S.W.2d 813.

McCullen, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN

This suit was instituted by plaintiff (respondent) on a lost negotiable promissory note, and to foreclose a deed of trust upon real estate owned by defendants (appellants). A jury having been waived by the parties, the case was tried before the court sitting as a jury. On December 15, 1941, the court entered of record a "Memorandum of the Court" and thereafter entered judgment as of December 15, 1941, finding all the issues in favor of plaintiff. On December 16, 1941, defendants filed a motion for new trial and a motion in arrest of judgment, both of which were overruled and defendants were granted an appeal to this court.

It appears that on November 16, 1925, the Lee Realty Company, a corporation in St. Louis County, Missouri, loaned defendants $ 2000 for the repayment of which defendants executed a principal note in said sum payable to said company or order, due three years after date, and six interest notes of the same date maturing from six to thirty-six months from said date. Defendants also executed at that time the deed of trust referred to later. From time to time thereafter, the principal note was by agreement of said parties extended for three-year periods and extension interest notes were executed by defendants until in 1937 an agreement for the renewal of the loan was made for one year maturing November 16, 1938, and defendants executed two renewal interest notes. Plaintiff's petition alleged that the Lee Realty Company, payee in said principal note, indorsed it in writing across the back thereof and delivered and transferred it to plaintiff for value, whereby plaintiff became the owner thereof and entitled to the amount mentioned therein.

Plaintiff alleged that the last one year extension of said note matured on the 16th day of November, 1940; that no part of the note had been paid; and that the whole amount thereof, together with interest at the rate of eight per cent. per annum from November 16, 1940, was still due plaintiff; that the note could not be filed because it had been lost while it belonged to plaintiff. In her petition, plaintiff offered to execute and deliver to defendants a bond, such as is required by law, to indemnify defendants against all claims of any other person on account of said note, and all costs and expenses by reason of such claims. Plaintiff further alleged that on November 16, 1925, defendants duly executed a deed of trust, a photostatic copy of which was filed with the petition, whereby defendants conveyed to the said Lee Realty Company certain premises in St. Louis County, Missouri, described as follows:

"Lot 24 and South 10 feet of Lot 25 in Block 2 of Oak Lawn Terrace, a Subdivision in St. Louis County, Missouri, according to the plat thereof recorded in Plat Book 21, Page 50 of the St. Louis County Records."

Plaintiff alleged that said conveyance was in trust to secure the payment of the indebtedness on the part of defendants to the Lee Realty Company for borrowed money, the same being evidenced by the principal note for $ 2000 and the interest notes heretofore described. The covenants of said deed of trust were set forth in the petition of plaintiff, following which plaintiff alleged that all of said interest notes had theretofore been paid but that said principal note is still due and payable. Plaintiff prayed judgment for the amount of the debt, interest and costs and that defendants and all persons claiming under them or any of them be foreclosed of all interest or equity in the redemption of the premises described in the deed of trust, and that the premises be ordered sold and the proceeds of such sale applied to the payment of costs and expenses of this action and the foreclosure of the deed of trust, and finally to the payment of said principal note and accrued interest; and that defendants be adjudged to pay to plaintiff any deficiency remaining after applying to the payment of said note all of said moneys applicable thereto.

The answer of defendants was a general denial of the allegations of plaintiff's petition and a plea that said note and the payment thereof were barred by the ten-year Statute of Limitations.

Defendants contend that plaintiff failed to prove the indorsement by the Lee Realty Company of the principal note and that the judgment entered by the trial court in favor of plaintiff was void because no indemnifying bond, as provided by Section 1115, R. S. Mo. 1939 (Mo. R. S. A., sec. 1115), was tendered or filed during the September term, 1941, of the trial court, during which term the judgment was rendered, or before defendants' motion for a new trial was overruled.

Defendants assert that this is a suit in equity, while plaintiff contends that it is a suit at law. We think it is unnecessary to...