Kane v. Benz

• Decision Date: 07 January 1935
• Docket Number: No. 18214.,18214.
• Citation: 77 S.W.2d 855
• Parties: KANE v. BENZ et al.
• Court: Missouri Court of Appeals

77 S.W.2d 855

KANE v. BENZ et al.

No. 18214.

Kansas City Court of Appeals. Missouri.

January 7, 1935.

Appeal from Circuit Court, Pettis County; A. W. Walker, Special Judge.

Ejectment suit by Mary E. Kane against Fred A. Benz and wife and others, in which E. S. Shortridge was appointed as receiver. After the suit was abated by judgment, the receiver was directed to pay the amount collected to the clerk, and the parties were given the right to interplead. From a judgment that defendants take nothing by their application for the fund, defendants Benz appeal.

Affirmed.

Henry K. Bente, Palmer & Palmer, and Fred A. Benz, all of Sedalia, for appellants.

D. E. Kenndy and R. A. Higdon, both of Sedalia, for respondent.

SHAIN, Presiding Judge.

The controversy in the case at bar grows out of a suit in ejectment filed in the circuit court of Pettis county, Mo., wherein the respondent herein was plaintiff and the appellants herein were defendants. The trial court, on application of plaintiff in the ejectment suit, appointed a receiver. The receiver qualified and collected rentals on the real estate involved. Thereafter the defendants, Benz and wife, filed motion for judgment of dismissal, wherein was alleged a misjoinder of parties. Thereafter the plaintiff dismissed as to all parties defendant except Benz and wife. Thereafter the cause was taken up, and plaintiff's suit was abated by the judgment of the court. Thereafter Benz and wife tiled a motion for accounting of receiver, and the receiver filed his report, and the court disposed of the motion, and the following record was made, to wit: "Now on this day come the parties hereto into Court by their respective attorneys, and the motion for accounting and to direct the Receiver to pay fund to Fred A. Benz, and Susie M. Benz, is taken up by the Court having seen and heard the said motion and being fully advised in the premises, does order the Receiver herein, E. S. Shortridge, to pay to the Clerk of this Court the full amount collected. Said money to be paid by May 1, 1932, and the parties hereto are, by the Court given the right to interplead, which time for Receiver to make said payment was on May 2, 1932, continued to June 15, 1932, and again on June 13, 1932, such time was extended to September 5, 1932."

In conformity to the above orders of the trial court, Benz and wife filed a motion claiming funds in the hands of the receiver, and Mary E. Kane, the respondent herein, filed interplea claiming the funds.

At the above stage of the proceedings, a change of venue was taken, and by consent of all parties Hon. A. W. Walker of the Ninth judicial circuit was called, and trial was had before said judge, and the following judgment was entered of record, to wit: "Wherefore, it is ordered and adjudged by the Court that the Defendants take nothing by their application for funds; and that Plaintiff have and recover of the Defendants herein, Fred A. Benz and Susie M. Benz, her costs in this behalf laid out and expended, and in default of the payment thereof, that execution issue therefor."

Defendants Fred A. Benz and Susie M. Benz, his wife, duly appealed.

All of the facts that are above set forth are taken from what the appellants have printed under the heading "The Record Proper."

We are confronted by a confusing presentation. The appellants, after reciting, in the concluding paragraph under the above heading, that motion for new trial was filed and overruled and appeal duly taken, conclude by saying: "And thereafter, on December 15, 1933, Defendants presented their bill of exceptions to said Judge Walker, and asked that it be signed, settled, filed and made a part of the record of said cause, which was duly done as set out at Page 26 hereof, said bill being in words and figures as follows."

Following the above follows what purports to be the bill of exceptions. Regardless of the recitals above, the so-called bill of...