Hodges v. Brooks

• Decision Date: 17 December 1937
• Docket Number: No. 18950.,18950.
• Citation: 110 S.W.2d 1130
• Parties: CLARENCE S. HODGES ET AL., APPELLANTS, v. L.F. BROOKS ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

110 S.W.2d 1130

CLARENCE S. HODGES ET AL., APPELLANTS, v. L.F. BROOKS ET AL., RESPONDENTS.

No. 18950.

Kansas City Court of Appeals. Missouri.

December 17, 1937.

Appeal from Circuit Court of Pettis County. — Hon. Dimmitt Hofman, Judge.

REVERSED AND REMANDED.

Fred A. Benz for appellants

Montgomery & Salveter for respondents.

SHAIN. P.J.

The issues in this case are of and concerning the actions and proceedings of the Circuit Court of Pettis County. Missouri, touching a bill in equity filed in said Court by the plaintiffs against defendants.

The uncaptioned petition filed by plaintiffs is set forth in an abstract of the record filed by them in this Court.

In the plaintiffs' petition it is charged that the defendants entered into collusion among themselves with intent and without just cause to deprive the plaintiffs of their property by certain acts of fraud and deceit and general misrepresentations touching the ownership and encumbrances of same of certain real estate purchased by plaintiffs. In said petition, the plaintiffs seek much relief including injunctive or restraining orders, the cancellation of deeds of trust, for declaration of title and vesture of title in plaintiffs, for damages in the sum of $1967.50 and permanent restraining orders from disturbing plaintiffs peaceable possessions and from filing action by suit or otherwise to question plaintiffs title or possession.

The record before us for review, consisting of record proper, abstract filed by appellant, and an abstract filed by respondents, presents perplexities in that the whole bears analogy to a block puzzle with scattered parts that must be assembled with continuity before we can tell what is represented.

The record proper in the case can better be classed as a partial index to what the record shows than an abstract that presents the record itself. In this document it is not even indicated that the plaintiffs filed a suit in the Court and if so, to what term returnable and there is made no showing that any process whatever was ever had out of said Court. The first showing in the record proper being under date of the 14th day of December, 1936, being the 24th day of the November Term. 1936, when it is asserted that certain defendants by leave of Court file answers.

The abstract filed by the plaintiffs in the case, who are appellants herein, which abstract is shown approved by the Court and attested by attorneys states as follows:

"RECORD PROPER."

"This suit was instituted in the Circuit Court of Pettis County, Missouri, March 9, 1936, by appellants as plaintiffs below, filing their petition herein, which as amended, omitting caption and signatures, as is done in all subsequent pleas herein set out, is as follows:"

After the above appears the uncaptioned petition and in said petition certain names do not appear that afterwards do appear and are designated as defendants. Thereafter follows an entry as of May 6, 1936, which is captioned as motion for interlocutory judgment as to defendants J.P. Green and Elmer E. Sterling (whose names do not appear in plaintiffs' petition) and Quincy A. Morgan and W.P. Hurley, all of whom it is asserted were duly served with summons but come not but make default. However no such service is shown.

Thereafter is shown a motion, under date of May 7, 1936, by the plaintiffs to make Donnohue Loan and Investment Co., a defendant, which motion was duly sustained and permission given to amend petition by interlineation. It is shown that summons was duly issued and duly served as to the above defendant. In so far as any record before us show, the above summons, service and return is the only one had.

The abstract makes next showing as follows:

"TRIAL."

"Thereafter, Dec. 14, 1936, said cause was duly called for trial in said Court, whereupon at said time, Plaintiffs duly filed the following motion for judgment which is set out at pages 9 and 10 hereof, but the Court then overruled same to which ruling Plaintiffs duly objected and excepted at the time. (See page 9, Abstract).

At the same time, Dec. 14, 1936, by leave of Court, all of Defendants except the Donnohue Loan and Investment Co., filed their respective answers as set out at pages 10, 11, 12, and 13 hereof, to which filing Plaintiffs then and there duly objected and excepted and still except because such answers were untimely and stated no meritorious defenses.

The Court then ordered a proceeding with the trial of the cause, on its merits, whereupon Plaintiffs elected to stand on the merits of their motion for judgment on the law and the pleadings, whereupon the Court ordered a JUDGMENT OF DISMISSAL as is set out at page 13 hereof.

Thereafter, in due course and in due form. Plaintiffs duly filed their MOTION FOR NEW TRIAL, as set out at pages 13, 14 hereof, and the overruling thereof, set out at page 15 hereof; their Application and Affidavit for Appeal and the granting thereof referred to at page 15 hereof; the filing and approval of the BILL OF EXCEPTIONS set out at page 9 hereof, of which as much as is necessary for an understanding of the issues in this cause, is here set out as follows:" (Italics ours)

Thereafter under head of "Bill of Exceptions" is recited the procedure of May 7, 1936, making Donnohue Investment Co., a party defendant and wherein it is recited that cause was called for trial on Dec. 14, 1936, and that Fred A. Benz made appearance for plaintiffs and Henry C. Salveter made appearance for defendants, and wherein it is also asserted that order of summons by publication was had as to L.F. Brooks and Ethel H. Brooks.

There is next shown a motion filed by plaintiffs for judgment on the law and the pleadings against all of the defendants based upon the alleged fact. "That although all of said Defendants were duly served with summons here, or entered their appearance herein, and now come not, with their timely answers to Plaintiffs petition herein, and make default —."

In the record presented by plaintiffs it is asserted that at the same time, L.F. Brooks and Ethel Brooks by leave of Court file answer and the said answer follows. It is further stated that likewise J.P. Green filed answer and said answer follows. Thereafter it is stated that defendants Quincy A. Morgan. Elmer E. Sterling and W.P. Hurley likewise are permitted to file "their untimely answers". Thereafter the answers filed are set out and thereafter the following is shown:

"Plaintiffs' motion for judgment was then taken up when Mr. Salveter said in response to questions by Mr. Benz: `I have represented Dr. L.F. Brooks and his wife. Ethel H. Brooks all the time during the pendency of this suit, and on the first day of this term (Nov. 2, 1936) asked the Court to set the hearing of this case, for December 14, 1936.'"

(1) "THE COURT: Well, I recall very distinctly at the beginning of the term, that was on the first Monday in November, when this case was called, Mr. Salveter said he would enter his (Brooks et ux), appearance."

(2) "MR. BENZ: Is it then the holding of the Court that Mr. Salveter did ask the setting of the cause at that time, in behalf of Dr. Brooks? THE COURT: Certainly."

(3) "Court overruled Plaintiffs' said motion for judgment, to which ruling Defendants then and there duly objected and excepted and still except because no answers were timely filed nor any reasonable cause shown for such failure to do so."

(4) "Whereupon the Defendant. J.P. Green was likewise permitted (Dec. 14, 1936), to file his untimely answer, to which Plaintiffs likewise objected and excepted and still except."

(5) "MR. BENZ: Then, Your Honor. I think this cause should be continued to the next term so we may have an apportunity to know what plea to make, as we can only learn that through deposition and we wish to take the deposition and he has not been in court officially so far as I know, at least, by constructive service and unless it was entered at the beginning of the term here, by his counsel, then they are not in court. (But the Court refused to continue same to which Plaintiffs duly objected and excepted at the time and still excepts.)"

(6) "THE COURT: Proceed. The Court thinks the matter ought to be heard on the merits."

(7) "THE COURT: Proceed gentlemen. Who is your first witness?"

(8) "To which action and ruling of the Court, the Plaintiffs by their counsel, then and there duly excepted at the time and still except."

(9) "BY MR. BENZ: The Plaintiffs are standing on their motion (for judgment on the law and the pleadings)."

(10) "THE COURT: Very well, let the record show cause dismissed by Court, for failure to prosecute."

(11) "To which ruling and action of the Court, the Plaintiffs, by their counsel, then and there duly excepted at the time and still except."

"(This was all the evidence introduced.)

And thereupon, the Court made the following entry of dismissal:" (The numerals indicated are by the Court and some of same are referred to hereafter for purpose of brevity.)

Thereafter is shown:

"JUDGMENT."

"`Cause dismissed by Court for failure to prosecute.'"

Plaintiffs motion for new trial is thereafter set out in full. In motion for new trial, complaint is made as to filing of answers out of time, without previous service of copies and asserting that said failure had caused plaintiffs to prepare only for default therein and fact was a misuse of judicial discretion to then force plaintiffs to trial without any opportunity to prepare to meet or rebut defendants defense as then filed and that defendants used said tactics to purposely and without just cause deceive plaintiffs, employed tactics causing avoidance and delay in not timely filing their answers so as to not disclose their respective defenses without any cause shown first being given.

It is further alleged as follows:

"2. That the Court erred in dismissing the Plaintiffs' cause, without first giving them a prior opportunity to know Defendants' respective defenses, so that they could know...