Hodges v. Brooks, 19335.

• Decision Date: 05 December 1938
• Docket Number: No. 19335.,19335.
• Citation: 122 S.W.2d 383
• Parties: HODGES et al. v. BROOKS et al.
• Court: Missouri Court of Appeals

122 S.W.2d 383

HODGES et al. v. BROOKS et al.

No. 19335.

Kansas City Court of Appeals. Missouri.

December 5, 1938.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action in equity by Clarence Hodges and Janie Hodges against L. F. Brooks and others for the cancellation of certain trust deeds and for other relief. From an adverse judgment, the plaintiffs appeal.

Judgment affirmed.

Fred A. Benz, of Sedalia, for appellants.

Montgomery & Salveter, of Sedalia, for respondents.

BLAND, Judge.

This is an action in equity for the cancellation of certain deeds of trust and for other relief. This is the second appeal in the case. In the first appeal the cause was remanded to the trial court. See Hodges v. Brooks, Mo.App., 110 S.W.2d 1130.

After the case reached that court defendants were permitted to file answers out of time. Thereafter, plaintiffs filed a motion for judgment on the pleadings, alleging that the answers were untimely filed; that they did not plead any facts showing just or reasonable cause for their being filed out of time; that they contained no allegations of fact which would constitute a meritorious defense and that they did not assert any interest in the subject matter of the action. The motion for judgment on the pleadings was based upon the theory that, under all of the circumstances, the alleged answers really constituted no answers at all and the case should be treated as though none had been filed.

The motion for judgment on the pleadings was overruled.

It appears that the court had theretofore ordered plaintiffs to give security for costs and that they were in default in this matter. Counsel, at the time the motion for judgment was ruled upon, offered to comply with the court's order in reference to filing a bond for costs, but refused to participate further in the case "on the merits," and indicated that they would file a motion for a new trial and take an appeal. The court, thereupon, dismissed the case on account of the announcement of counsel for plaintiffs that they declined to participate further in the proceedings. Plaintiffs have appealed.

It is quite apparent that the motion for judgment on the pleadings was not the proper way to bring the matters alleged in the motion to the attention of the trial court. Plaintiffs should have filed a motion to strike the answers and, in case their motion was overruled, they then could have saved their exceptions to the ruling and proceeded to trial...