Irwin v. Burgan

Citation28 S.W.2d 1017
Decision Date03 June 1930
Docket NumberNo. 28140.,28140.
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. Hon. Charles R. Pence, Judge.

REVERSED AND REMANDED (with directions).

Ellison, Dabbs & Flora for appellants.

(1) The petition does not state a cause of action against defendants, J.A. Dock, Mrs. J.A. Dock and Patrick Carr. None of said persons are mentioned in said petition and there are no allegations of or concerning any of said persons in the petition. There are no allegations in the petition from which it may be inferred that said persons, or any of them, had anything to do whatsoever with the transactions mentioned in the petition. (2) Merely writing the names of J.A. Dock, Mrs. J.A. Dock and Patrick Carr into the caption of the petition, without leave of court to so amend the petition, did not make them parties to the action. Sec. 1289, R.S. 1919; Elliott v. Railway Co., 157 Mo. App. 522; Busch v. Railway Co., 157 Mo. App. 512. The petition is not aided by plaintiff's petition to make J.A. Dock, Mrs. J.A. Dock and Patrick Carr defendants. That document was filed in the Assignment Division when the case was then pending in Division Three. Secs. 2452 to 2455, R.S. 1919; May Hosiery Mills v. Hirsh, 274 S.W. 887; Meierhoffer v. Hansel, 294 Mo. 195, 243 S.W. 131. (3) Service of process on defendants J.A. Dock and Mrs. J.A. Dock, in the State of Washington, did not confer jurisdiction on the court to render a general judgment against them, as was done in this case. Sec. 1204, R.S. 1919; Jones v. Brewing Assn. (Mo.), 188 S.W. 82; McMenamy Inv. Co. v. Catering Co., 175 Mo. App. 679, 267 Mo. 340, 184 S.W. 467; Moss v. Fitch, 212 Mo. 484. (4) It was error for the circuit court to render judgment against defendants, J.A. Dock, Mrs. J.A. Dock and Patrick Carr, when there was a plea to the jurisdiction pending as to defendants J.A. Dock and Mrs. J.A. Dock, and a demurrer as to defendant Patrick Carr. Steamboat Osprey v. Jenkins, 9 Mo. 645; Sheppard v. Starratt, 35 Mo. 366; Ruch v. Jones, 33 Mo. 393; Montgomery v. Gahagan, 246 Mo. 310. (5) The court erred in rendering judgment against J.A. Dock, Mrs. J.A. Dock and Patrick Carr, without hearing any evidence. Gate City Bank v. Strother, 188 Mo. App. 214, 175 S.W. 76; Sell v. West, 125 Mo. 621, 46 Am. St. 508; Rumsey v. Peoples Railway Co., 144 Mo. 189; Wichita Power & Light Co. v. Public Utilities Co., 260 U.S. 48, 67 L. Ed. 124; Meierhoffer v. Hansel, 243 S.W. 133, 294 Mo. 195. (6) The court erred in rendering a duplicate judgment against defendants Edmond T. Burgan and H.V. Burgan. The prior judgment against them had not been set aside. Sprinkle v. Fleming, 239 S.W. 901, 209 Mo. App. 405; Bobb v. Taylor, 193 S.W. 800; Sterling v. Parker Washington, 170 S.W. 1159, 185 Mo. App. 192; 34 C.J. 750 (1162); 34 C.J. 757 (1166); 34 C.J. 771 (1188). (7) The evidence was insufficient to establish fraud against defendants Edmond T. Burgan and H.V. Burgan. Lawson on Contracts (3 Ed.) sec. 228, p. 318.

Grover Childers and J. Roy Smith for respondent.

(1) The authorities cited by appellants do not sustain the points claimed. (2) Defendants J.A. Dock, Mrs. J.A. Dock and Patrick Carr are not necessary parties. They were brought in for the following reasons, only: (a) J.A. Dock and Mrs. J.A. Dock to try their interest in the notes, if any; and to restrain their aiding in removing the notes from the jurisdiction of the court. (b) Patrick Carr, to restrain his removal of the notes in litigation from the territorial jurisdiction of the court. Plaintiff's case was complete without them. McMurray v. Bank, 74 Mo. App. 394. (3) Appellants assign as error the court's rendering judgment against defendants J.A. Dock, Mrs. J.A. Dock and Patrick Carr. No judgment was rendered against either. (a) Appellants complain that defendants Dock and Carr are not named in the petition, except the writing of their names in the caption of the original petition. (b) Plaintiff filed his supplemental petition stating fully their connection with the notes and their intention to remove and negotiate same, on which petition the court granted a restraining order, together with his order making them parties defendant for the purposes aforesaid. Sec. 1280, R.S. 1919; Ward v. Davidson, 89 Mo. 445; Reyburn v. Mitchell, 106 Mo. 365; Daniell Chancery Pr. 1516 and notes; Childs v. Ry. Co., 117 Mo. 437; Rush v. Block, 193 Mo. App. 704, 187 S.W. 153. (4) No general judgment was rendered against defendants, J.A. Dock and Mrs. J.A. Dock. They entered their general appearance, waiving all defects in service by their motion to set aside decree. Boulware v. Ry. Co., 79 Mo. 494; Fitterling v. Ry. Co., 79 Mo. 504; Fry v. Ry. Co., 73 Mo. 123; Tower v. Moore, 52 Mo. 118. (5) Defendants, J.A. Dock and Mrs. J.A. Dock entered their general appearance in this cause by filing their motion to set aside decree, wherein grounds other than jurisdiction were urged. Clark v. Brotherhood of Locomotive Firemen, 99 Mo. 687; 4 C.J. 1333, sec. 27; Page v. Atlantic etc., Ry. Co., 61 Mo. 78. (6) No plea to the jurisdiction, undisposed of, was pending in behalf of defendants Dock at the time the decree was rendered. Plaintiff's substituted and new service had superseded this plea by the above named defendants. (a) No judgment was rendered against the Docks. (b) No judgment was rendered against defendant, Patrick Carr. (7) Appellants complain of the judgment entered against defendants Edmond T. Burgan and H.V. Burgan, when, as they state, a similar judgment had been rendered, and motion for new trial was pending. The prior judgment, as appellants term it, was not a final judgment, jurisdiction of the cause being retained by the court for further proceedings. 23 C.J. 243 (note 57); Sec. 1521, R.S. 1919; State ex rel. v. Klein, 140 Mo. 510; State ex rel. v. Porterfield, 258 S.W. 722; Black on Judgments, sec. 3; Specht v. Asphalt Paving Co., 26 Ky. 193. (8) The evidence was sufficient to establish, and did establish, fraud on the part of defendants. Lawson on Contracts (3 Ed.) sec. 228; Upton v. Vail, 6 Johns. 181; Allen v. Addington, 7 Wend. 9; Kidney v. Stoddard, 7 Met. 252; Bispham's Pr. Eq. (3 Ed.) secs. 206, 213; Clinkenbeard v. Weatherman, 157 Mo. 114; Morley v. Harrah, 167 Mo. 74; Met. Paving Co. v. Brown, etc., 274 S.W. (Mo.) 823; Wann v. Scullin, 210 Mo. 429; Bank v. Crandall, 87 Mo. 208; 21 C.J. 114, note 61 (a).


This case turns on alleged procedural errors. To show what they were we must state the facts at some length.

On May 18, 1925, the respondent filed a bill in equity in the Circuit Court of Jackson County against the appellants Burgan: (a) for the rescission of a contract whereunder he had purchased a theatre from them; (b) to recover back $5,000 cash consideration paid; and (c) to cancel two promissory notes of $2500 each, made to the appellant H.V. Burgan, due respectively in one and two years, these also being a part of the purchase price. The petition alleged the sale was induced by fraudulent misrepresentations as to the earnings of the theatre, and charged that said appellants falsely stated no competing theatre was in contemplation, when they knew of an existing contract for the immediate construction of one. Along with the other relief sought, the bill prayed that the Burgans be enjoined from negotiating the two notes. The Burgans filed answer denying the allegations of fraud in the petition.

The cause was assigned to Division 3 of the court, where, on December 30, 1925, during the November term, it was tried, submitted and taken under advisement. On January 23, 1926, during the January term, the court rendered its decree finding the issues for the respondent, rescinding the sale, awarding a money judgment for $5187.50, cancelling the notes and requiring defendants to deliver them to the clerk within ten days for cancellation; and provided "that in case of the non-delivery thereof within the time specified plaintiff have such further relief in relation to said notes as shall be just and equitable, and the court hereby retains jurisdiction of the cause for the purpose aforesaid." (Italics ours.) By the express terms of the decree execution was awarded to the respondent for his debt and costs.

The Burgans duly filed a motion for a new trial within four days thereafter, but the motion was never ruled upon for reasons which will presently appear.

The notes were not surrendered, and the status of the case remained unchanged until February 13, 1926, when the parties appeared and the testimony of the Burgans was taken for the purpose of discovering the whereabouts and ownership of the notes. On several occasions thereafter further hearings were had on these matters, and the respondent took the deposition of J.A. Dock, a brother-in-law of Mr. Burgan residing in the State of Washington, to whom the Burgans claimed to have indorsed and transferred the notes for value in November, 1925, shortly before the suit was tried. Dock's deposition showed the notes were in the hands of Patrick Carr, a practicing lawyer of Jackson County, for collection by him as attorney for Dock and his wife. The testimony is marked by some inconsistencies, contradictions and improbabilities which produce an impression that the claimed transfer of the notes by the Burgans, if made, was not in good faith for value without notice. After these hearings the court cited Mr. Carr to appear and produce the notes, but the citation was apparently ignored.

Following this, at the March term, on April 27, 1926, the respondent filed a "supplemental" petition as follows:

"Comes now the plaintiff and shows to the court that the notes in plaintiff's petition described and which plaintiff therein prays to have cancelled, are now in the possession of Patrick Carr of Jackson County. Missouri; that said Patrick Carr claims to hold said notes...

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