Hurst Automatic Switch & Signal Co., And Fred Hurst v. Trust Company of St. Louis County
| Decision Date | 19 December 1921 |
| Citation | 236 S.W. 58,291 Mo. 54 |
| Parties | HURST AUTOMATIC SWITCH & SIGNAL COMPANY and FRED HURST, Appellants, v. TRUST COMPANY OF ST. LOUIS COUNTY, STONEWALL J. WALTON, REBECCA WALTON, GEORGE A. BODE and F. J. HOLLOCHER |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court. -- Hon. G. A. Wurdeman, Judge.
Reversed (with directions).
W. W Cohick for appellants.
(1) The decree of this court provides that the trustee's sale and his deed thereunder, conveying plaintiff's property to defendant Walton, and said Walton's deed are null and void, and the mandate directs that plaintiffs be restored to all things lost by the judgment of the trial court. The trial court erroneously refused to enter judgment accordingly and erroneously refused on the accounting to enter judgment restoring plaintiffs to what they lost by the original judgment in the cause. Keltner v. Harris, 204 S.W 561. By the judgment of the trial court plaintiffs lost possession of the land and lost the rents, issues and profits thereof, all of which the trial court erred in not restoring to plaintiffs in its judgment on the accounting. (2) The rights of plaintiffs to restitution of premises and to the value of rents, profits and damages fixed by the judgment of the trial court, are established by the judgment of reversal. The reversal completely nullifies the judgment and restores appellant to the status he occupied before it was rendered and he is entitled to a restitution for what he has lost by the judgment. Colburn v. Yantis, 176 Mo. 670; Crispen v. Hannoven, 86 Mo. 160; Jones v. Hart, 60 Mo. 362; St. Joe Ry. Co. v. Brown, 43 Mo. 294; Carson v. Suggett, 34 Mo. 364; Chouteau v. Allen, 74 Mo. 56; Connor v. Pope, 23 Mo.App. 344; Tourvill v. Railroad, 148 Mo. 614. (3) Defendant was not an innocent purchaser. William Sheer, Walton's partner, who purchased the property in controversy from him, was a lis pendens purchaser. All defendants had notice of the pending of this cause in the trial and in this court, making them liable to plaintiffs under said opinion and mandate of this court. The trial court erred in entering up the judgment it did on the accounting. Turner v. Edmonston, 210 Mo. 416; Mo. Ins. Co. v. Russ, 214 S.W. 860. (4) By the opinion and mandate of this court an accounting and the entry of a proper judgment thereon is directed. These directions were not followed by the learned trial court. Keltner v. Harris, 204 S.W. 561. (5) Defendant trust company refused to accept tender of amount due on the notes prior to foreclosure; therefore, it is not entitled to the interest which the judgment of the trial court gives it on the accounting. Potter v. Schaffer, 209 Mo. 586, 601; Miller v. Staggs, 266 Mo. 457. (6) Plaintiffs were entitled under the decree and mandate of this court to offer evidence at the trial on said statement of account tending to show value of rents, profits, waste and damages and have them adjudged in their favor on the accounting. Miller v. Staggs, 266 Mo. 457; Potter v. Schaffer, 209 Mo. 586. "He who takes with notice of an equity takes subject to that equity." Turner v. Edmonston, 210 Mo. 416; Life Insurance Co. v. Russ, 216 S.W. 860; Thompson v. Penny, 199 S.W. 1011; Woolum v. Tarpley, 196 S.W. 1127. "The court had the subject-matter of the suit within its grasp, had jurisdiction of that and likewise of the parties, and the doctrine is too well settled to admit of either discussion or dispute that when a court of equity once acquires jurisdiction of a cause it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice between the parties." Real Estate Savings Inst. v. Colonious, 63 Mo. 295; Woolum v. Tarpley, 196 S.W. 1128; School District v. Holt, 226 Mo. 406, 415; Waddle v. Frazier, 245 Mo. 391, 403.
Joseph C. McAtee for respondent, Trust Company.
(1) This appeal was prematurely taken and allowed, for the reason that the judgment rendered was interlocutory and not final. Sec. 1521, R. S. 1919. (2) A judgment which does not dispose of all the parties to the cause is not a final judgment. Deck v. Wright, 135 Mo.App. 536; Crowe v. Crowe, 124 Mo.App. 120. A final judgment must appear to be in favor of one party and against the other. It must purport to be the actual and absolute sentence of the law as distinguished from a mere finding that one of the parties is entitled to a judgment. Black on Judgments, sec. 3; State v. Sutterfield, 54 Mo. 394; Railroad v. Railroad, 94 Mo. 542; Stickler v. Tracy, 66 Mo. 465. A judgment, thought upon the merits or determining some substantial right, which leaves necessary further judicial action before the rights of the parties are settled, is not final. 1 Freeman on Judgments, sec. 16; State ex rel. v. Klein, 140 Mo. 510; State ex rel. v. Woodson, 128 Mo. 513; Railroad v. Express Co., 108 N.C. 24. A final judgment is the ultimate determination of the court upon the whole matter in controversy in the action. An order of the court, made in the progress of the cause requiring something to be done or observed, but not determining the controversy, is an interlocutory order and is sometimes called an interlocutory judgment. Pfeifer v. Crane, 89 Ind. 485; Finkelnburg & Williams on Appeals, pp. 58, 59; Greely v. Mo. Pac. Ry. Co., 123 Mo. 159; Voorhis v. B. & L. Assn., 59 Mo.App. 55; Rannells v. Washington University, 96 Mo. 226; Young v. Young, 165 Mo. 624. (3) A court of equity has discretion, governed by the equities of each case, to name terms upon which it will let in a party to redeem. Hannah v. Davis, 112 Mo. 599. (4) To prevail in any suit for redemption plaintiffs must pay off the debt, principal and interest, and if they fail and decline to do this, their bill will be rightly dismissed. In fact redemption is conditional upon payment of the amount due upon the mortgage debt, thereby causing plaintiff to do that which is equitable and just. Joplin v. Walton, 138 Mo. 492; Sampson v. Mitchell, 125 Mo. 217; Kline v. Vogel, 90 Mo. 239.
Stonewall J. Walton for respondents, Stonewall J. Walton and Rebecca L. Walton.
(1) Except in the cases specified by statute an appeal will lie only from a final judgment. R. S. 1919, sec. 1469. (2) An appeal does not lie from an interlocutory judgment. This is true even if the judgment is one that the court is without authority to enter. Halloway v. Halloway, 97 Mo. 628, 641. (3) A judgment is the final determination of the right of the parties in an action. R. S. 1919, sec. 1521; Deck v. Wright, 135 Mo.App. 536. (4) A judgment entry is not final so as to authorize an appeal unless it makes some disposition as to all parties to the record. (5) One final judgment must dispose of all the issues and all the parties in the case. Dixon v. St. Louis Transit Co., 197 Mo.App. 646, 648; R. S. 1919, sec. 1528; Cramer v. Barmon, 193 Mo. 327; Baker v. City of St. Louis, 189 Mo. 375. (6) The appeal was premature and should be dismissed because no final judgment was rendered. Koeln v. Gould, 260 Mo. 499.
Julius R. Nolte for respondent, George A. Bode.
(1) A new and different cause of action cannot be substituted for the original. Clothing Co. v. Steidman, 120 Mo.App. 519. (2) Respondent Bode was not a party to the unlawful detainer and any finding as to the value of monthly rents, etc., in that suit is not evidence against or binding upon him. (3) Respondent Bode is entitled to a day in court and trial by jury before he can be held for damages. (4) The statement of account filed by appellants is a departure from the cause of action pleaded in the original petition; it creates a misjoinder of parties to such an extent that the issues cannot be determined between the parties. (5) The trial court committed no error in decreeing that respondent Bode have judgment on the account filed by appellant and that appellant take nothing thereunder.
SMALL, C. Brown and Ragland, CC., concur.
This is the second time this case has been before this court. The petition was in equity, filed April 8, 1914, to cancel and set aside a trustee's sale and deed of certain lands made February 28, 1914, and to redeem the property from the deed of trust (which was executed by Mrs. Massey a prior owner) under which the sale was made. The plaintiff company was the owner of the property, subject to the deed of trust; plaintiff Fred Hurst was its tenant; the defendant trust company was the trustee named in said deed of trust and owner of the Massey note secured thereby; defendant Bode was the Sheriff of St. Louis County, who was designated in the deed of trust to act as trustee in the absence or refusal to act of the trust company; defendant Stonewall J. Walton was the purchaser, for $ 17,605, at the foreclosure sale made by defendant Bode, the sheriff, as substitute trustee. On the original trial of the case in the circuit court, the court rendered judgment for the defendants, but on appeal to this court we reversed the judgment and remanded the case with directions.
There was a charge in the petition that the property was sold by the sheriff as trustee, to Walton, at an inadequate price after lawful tender of the amount due on the note secured, and that "the said defendants and all of them had agreed and conspired together to force a pretended sale of said property by the said Bode, as aforesaid, for the purpose of unlawfully acquiring title and possession of the same at a price much less than the said property was worth, and that the refusal of the said trust company in the manner and form aforesaid and the said pretended sale of the said property by the said Bode as aforesaid were dictated by and made pursuant to the terms of the same unlawful agreement and conspiracy aforesaid."
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