Juvenal v. Heim

Decision Date10 January 1944
Citation177 S.W.2d 672,238 Mo.App. 217
PartiesGeorge G. Juvenal, Appellant, v. Michael H. Heim, Charles H. Clark and W. A. Mobley, Respondent
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard, Judge.

Appeal dismissed.

Marcy K. Brown, Jr., for appellant.

(1) The court erred in holding that plaintiff's petition failed to state a cause of action to set aside a judgment. Fadler v. Gabbert, 63 S.W.2d 121, 129-32; Irvine v. Leyh, 102 Mo. 200, 14 S.W. 717; U.S. v Throckmorton, 98 U.S. 61; Howard v. Scott, 225 Mo. 685, 125 S.W. 1165; Krashin v. Grizzard, 31 S.W.2d 984. (2) The court erred in holding that plaintiff's petition failed to state facts sufficient to grant injunctive relief. R. S. Mo. 1939, Secs. 1665, 1666, et seq.; State ex rel. American Bankers Assur. Co. v McQuillen, 260 Mo. 164, 168 S.W. 924. (3) The court erred in dismissing plaintiff's petition and entering a final judgment against plaintiff and refusing plaintiff the right to file an amended petition of no cause of action was stated or one was stated defectively. R. S. Mo. 1939, secs 925, 975; Jones v. McGonigle, 37 S.W.2d 892, 897-8; Spears v. Bond, 79 Mo. 467; State ex rel Manning v. Swift, 86 S.W. 867, 869; Stegmann v. Weeks, 214 S.W. 134.

Casemore & Berman for respondents.

(1) Appellant's petition does not state a cause of action. Crowley v. Behle, 131 S.W.2d 383, 386. (2) Equity will not entertain jurisdiction where there is an adequate remedy in law. See Sec. 43, Equity, Missouri Digest, and numerous cases cited thereunder. (3) The action of the trial judge in the circuit court, in dismissing plaintiff's petition, was according to law. Marbury v. City of Farmington et al., 5 S.W.2d 677, 680; C. H. Albers Commission Co. v. Spencer Milliker et al., 245 Mo. 368, 150 S.W. 712.

Bland, J. Cave, J., concurs; Shain, P. J., not sitting.

OPINION
BLAND

This is a proceeding to vacate a judgment of a justice of the peace, and to restrain the enforcement of a writ of execution issued thereon. A restraining order was issued but upon motion of defendants it was dissolved and plaintiff's petition was dismissed. Plaintiff has appealed.

The petition alleges that the judgment was rendered against plaintiff, and in favor of defendant, Heim, by one McNamara, a former justice of the peace within and for Kaw Township, Jackson County, Missouri; that the judgment was in the sum of $ 300, with interest; that defendant, Charles H. Clark, is the successor in office of said McNamara, and that the defendant, Mobley, is the constable of said Clark; that when the suit before the justice was brought plaintiff's attorney asked the justice to transfer the cause to another justice, for the reason that Heim's attorney was an office associate of the justice; that upon this suggestion being made the justice became insensed at plaintiff's attorney, believing that he had been charged with dishonesty and for sale and that if he transferred the cause it would be an admission thereof; that no such insinuation was intended by plaintiffs attorney but the matter was merely presented to said justice as a suggestion; that when the case came on for trial the justice was advised that Juvenal, the defendant, was in California and a continuance was requested on that ground but the continuance was refused and a default judgment was rendered against Juvenal on July 9, 1940; that within ten days thereafter, or, on July 18, 1940, Juvenal filed a motion to set aside said default judgment and tendered all accrued costs as provided by Section 2367, Revised Statutes Missouri 1939; that the costs were accepted by the clerk of the justice and were never returned to Juvenal. There is no allegation in the petition that any request was made for their return.

It is further alleged in the petition that it is the universal practice in justice courts, on costs being paid after default judgment, to set aside the judgment upon application; that it is the duty of said justice that if the judgment was not set aside to advise counsel of his refusal to do so, so that an appeal might be taken within the ten days allowed by law after the judgment was rendered.

The petition further alleges that the said justice waited until July 19, 1940 (the last day for taking an appeal), to make an order refusing to set aside the default judgment, and that it was several days later that Juvenal's attorney ascertained that said justice had refused to set aside said default judgment.

The petition further alleges that the acts of the justice were "deliberate, willful and intentional, and done with the intent of preventing said defendant Juvenal from being able to take an appeal to this court, and so that the judgment rendered would be final, and the same was a legal fraud in the procurement of said judgment intrinsic of the merits of said cause, and done out of malice and spite at said Juvenal's attorney for the aforesaid purposes and for collusion and collaboration with said Heim's attorney, who was an office partner of said justice as aforesaid."

The petition further alleges that after the rendition of the judgment a writ of execution was sued out; that said Juvenal had a good defense to the action in that the claim sued upon in the justice court had been paid in full and compromised.

Upon the filing of the petition in the circuit court a restraining order was issued. Thereupon, defendants filed a motion entitled "Motion to Dissolve Restraining Order and to Dismiss Plaintiff's Petition", and for grounds therefor stated:

"1. That the petition does not, on its face, state a cause of action in equity.

"2. That...

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2 cases
  • Husser v. Markham
    • United States
    • Kansas Court of Appeals
    • April 5, 1948
    ...be sustained, but this order was followed by a formal and complete judgment dismissing the cause and awarding costs to the defendant. The Juvenal case was decided prior to the effective date of new Civil Code of Missouri, Laws of Missouri 1943, p. 356 et seq., Mo.R.S.A. § 847, 1 et seq., an......
  • Jones v. Williams
    • United States
    • Missouri Supreme Court
    • March 8, 1948
    ...was dismissed by the sustaining of a demurrer. Therefore, the sustaining of a demurrer was not a final judgment. See Juvenal v. Heim, 238 Mo.App. 217, 177 S.W.2d 672; State ex rel. Adams v. Stockton, 123 S.W.2d 611. a third petition was held insufficient on demurrer then the trial court was......

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