Hurst Automatic Switch & Signal Co. v. Trust Co.

• Decision Date: 24 March 1928
• Docket Number: No. 26453.,26453.
• Citation: 5 S.W.2d 3
• Parties: HURST AUTOMATIC SWITCH & SIGNAL CO. et al. v. TRUST CO. OF ST. LOUIS COUNTY et al.
• Court: Missouri Supreme Court

5 S.W.2d 3

HURST AUTOMATIC SWITCH & SIGNAL CO. et al. v. TRUST CO. OF ST. LOUIS COUNTY et al.

No. 26453.

Supreme Court of Missouri, Division No. 2.

March 24, 1928.

Motion for Rehearing Denied April 9, 1928.

Error to Circuit Court, St. Louis County.

Action by the Hurst Automatic Switch & Signal Company and another against the Trust Company of St. Louis County and others. From an adverse judgment, plaintiffs bring error. Affirmed.

W. W. Cohick, of St. Louis, for plaintiffs in error.

Jos. C. McAtee, of Clayton, for defendants in error.

WHITE, J.

The plaintiff in error complains of an order of the circuit court of St. Louis county, appointing the sheriff as substitute trustee in a deed of trust, and directing him to execute the powers of such trustee. The plaintiff appealed to this court, afterwards voluntarily dismissed its appeal, and sued out this writ of error.

The record is in such shape that it is difficult to determine the exact nature of the errors complained of.

I. In his abstract of the record and in his brief, counsel for plaintiff in error mentions two motions, a motion by defendant in error, upon which the above-mentioned order of court was made, and a motion of plaintiff in error to set aside the order. No bill of exceptions has been filed in the case, and consequently those motions are not before us for consideration. The return to the writ of error sets out what purports to be the above-mentioned order, and the motion of the plaintiff to set aside the order, filed August 23, 1924, with no record entry of any ruling on the same. There is no certificate of the clerk of the circuit court of St. Louis county to this supposed record. The motion in the transcript is different from the motion set forth in the abstract of the record; that is, the abstract of the record does not correspond with the record itself, which we have before us. Therefore, with what has been said, we might affirm the judgment or dismiss the proceeding, but on account of the numerous times which this case has been before this court, assuming that a proper certification of record could be had, we would treat the record as if it were properly certified.

II. We cannot reverse the judgment, unless we find on the face of the order itself an error which will warrant such reversal. This is the fourth appearance of this case in this court. Assuming, as plaintiff in error does, that we must take into consideration our previous rulings, we will note what has heretofore been said in disposition of this matter, as bearing upon the propriety of the order complained of.

The suit originally was brought to set aside a sale under a deed of trust and cancel the deed made thereunder by the sheriff as substitute trustee. The plaintiff in error, Hurst Automatic Switch & Signal Company, as owner of the property, brought the suit; the deed of trust having been made by one Mrs. Massey, the former owner of the land. The defendant Trust Company of St. Louis county was the owner and holder of the note secured by the deed of trust on the land. Defendant Walton was the purchaser under that deed of trust, at the sale. When the case was tried first in the circuit court, the petition was dismissed. On appeal to this court (216 S. W. 954), the judgment of the trial court was reversed and the cause remanded, with directions to set aside the trustee's sale and take an accounting between the parties in interest.

The trial court took an accounting, with which the plaintiff was not satisfied, and on a...