Keltner v. Threlkel
| Decision Date | 29 January 1927 |
| Docket Number | 25689 |
| Citation | 291 S.W. 462,316 Mo. 609 |
| Parties | Clara D. Keltner v. Lula M. Threlkel, Plaintiff in Error |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled February 16, 1927.
Writ of Error to Jackson Circuit Court; Hon. Thomas B Buckner, Judge.
Reversed and remanded.
L. N Dempsey and J. M. Johnson for plaintiff in error.
(1) The motion for continuance should have been sustained, since it disclosed due diligence and set forth material evidence supporting the cross-petition. In overruling the motion, the court abused the judicial discretion vested in him by law and committed reversible error. Turnstall v. Hamilton, 8 Mo. 500; State v. Maddox, 117 Mo. 681; Campbell v. McCaskell, 88 Mo.App. 44. (2) It was immaterial that in anticipation of taking a change of venue from the Independence court, the plaintiff in error did not subpoena her witnesses to appear in that court on the day the case was set for trial. (3) The verified answer and cross-petition of plaintiff in error tendered the issue of title and right to possession by estoppel, since it alleges that at the request of plaintiff, defendant entered into possession of the land continued therein without interruption for five years, and expended more than $ 5000 on the land in improvements and in paying taxes under an oral agreement that the land should be hers. Such facts are sufficient in equity to entitle her to a decree vesting the title to the land in her as of the date when she entered possession. 1 Williston on Contracts, sec. 139, p. 311; School District v. Sheidley, 138 Mo. 684; Dozier v. Matson, 94 Mo. 332; Reese v. Smith, 12 Mo. 344; Newman v. Hook, 37 Mo. 207; Bredell v. Westminister Col., 242 Mo. 337; Grafeman v. Bank, 290 Mo. 311; Ward v. Ins. Co., 211 Mo.App. 554; Burk v. Adams, 80 Mo. 514; Commerce Trust Co. v. Coke, 283 Mo. 209. (4) The judgment of February 2, 1924, was the last final judgment rendered in the cause and therefore expressed the complete sentence of the court, supplanting the prior judgment rendered January 9, 1924. Winham v. Kline, 77 Mo.App. 36; Nelson v. Barnett, 123 Mo. 571. (5) A judgment outside the pleadings is void, and the question of jurisdiction must be tried by the whole record. State ex rel. v. Muench, 217 Mo. 137. (6) As the record now stands the judgment finally rendered was and is void and should be set aside: (a) It cannot dispose of all the issues raised by the pleadings, since it is unsupported by any evidence respecting the issues presented by the cross-petition. Windsor v. McVeigh, 93 U.S. 274; 1 Freeman on Judgments (5 Ed.) sec. 333. (b) The court was without jurisdiction to try the action at law in ejectment without first disposing of the cause in equity pleaded in the cross-petition. Allen v. Logan, 96 Mo. 598; Martin v. Turnbaugh, 153 Mo. 172; Gray v. Clements, 227 S.W. 111. (c) The judgment rendered is violative of the rule that a judgment must be supported by evidence and be single and complete and dispose of all the parties and issues, and the defect appearing on the face of the record the judgment must be pronounced void. State v. Wear, 145 Mo. 162; Gray v. Clements, 227 S.W. 111; Summit Bay Packing Co. v. Kryder, 263 S.W. 543; McVernon Car Co. v. Roofing Co., 227 S.W. 76; Car Mfg. Co. v. Rolling Mill Co., 285 Mo. 699; Morton v. Lloyd Const. Co., 280 Mo. 373. (d) Since no evidence was admitted bearing on the cross-petition a judgment which assumed to dispose of that cause of action would violate the guaranty of due process of law and be in contravention of Sec. 20, Art. 2, Mo. Constitution. Windsor v. McViegh, 93 U.S. 277; Hennig v. Staid, 138 Mo. 434; Jones v. Yore, 142 Mo. 38; State v. Julow, 129 Mo. 174; Roth v. Gabbert, 123 Mo. 29; Scott v. McNeal, 154 U.S. 34; Virginia v. Rives, 100 U.S. 313; Pennoyer v. Neff, 95 U.S. 714. (e) A sentence of a court against a party without hearing him is not a judicial determination. Windsor v. McVeigh, 93 U.S. 274; Freeman on Judgments (5 Ed.) sec. 333. And a judgment not sustained by any evidence must be reversed. (f) In ejectment the defendant may set up an equitable defense and a judgment on such defense is final and res adjudicata. Sampson v. Mitchell, 125 Mo. 217; Preston v. Rickets, 91 Mo. 320; Chouteau v. Gibson, 76 Mo. 38. (g) A plaintiff in an ejectment action must have the legal title and be entitled to possession at the beginning of the suit. Finley v. Babb, 144 Mo. 403. (h) A defendant in an ejectment suit may set up an equitable defense of estoppel in pais and invoke Sec. 1970, R. S. 1919. Titus v. Development Co., 264 Mo. 229. (7) The verified cross-petition alleged that plaintiff in error while in possession had expended over $ 5,000 in paying taxes and making improvements on the property. She should have been given a fair opportunity to be heard on these issues, and on proof of such outlay in no event should judgment have gone against her except upon the condition of her reimbursement. Secs. 1834, 1836, R. S. 1919; Peck v. Rea, 272 S.W. 979; Henderson v. Langley, 76 Mo. 226; Allen v. Mansfield, 82 Mo. 688; Insurance Co. v. Guseman, 186 Mo.App. 236; Russell v. De France, 39 Mo. 506; State ex rel. Jiner v. Foard, 251 Mo. 51.
M. A. Fyke, J. C. Hargus and A. N. Adams for defendant in error.
(1) The trial court did not abuse its discretion in overruling defendant's application for continuance. No diligence upon the part of the defendants was shown, and the court found, as a matter of fact, that the application was not made in good faith, but for the sole purpose of preventing a trial. Evans v. Pond, 30 Mo. 235; Schultz v Moon, 33 Mo.App. 338; Gibson v. Ins. Co., 181 Mo.App. 302; Sec. 2457, R. S. 1919. (2) Under the law applicable to changes of venue in the Sixteenth Judicial Circuit, it was plaintiff in error's duty to subpoena her witnesses to appear in court in Independence on the day the case was set for trial. Sec. 2457, R. S. 1919. (3) Defendant's answer was not a bill in equity, but only a denial of plaintiff's right to recover. Count 2 does not state facts sufficient to constitute a defense. The promise relied upon is not clear and unequivocal, but vague and indefinite. The second paragraph nullifies this promise, because defendant alleges that instead of paying the taxes she purchased the property at tax sales and received tax certificates of purchase from the city treasurer which were redeemed by plaintiff. She then asked that the title be ascertained and determined. No affirmative relief was asked. Her answer constitutes a mere denial of plaintiff's right to possession, the issue being whether plaintiff or defendant had title, and, therefore, right to possession. It is neither a counterclaim nor a setoff. Koehler v. Rowland, 275 Mo. 573; Peterson v. Larson, 285 Mo. 119; Kanan v. Wright, 270 S.W. 650; Gray v. Ward, 234 Mo. 291; Hall v. Small, 178 Mo. 629; Hayes v. Laughlin, 217 S.W. 264; Hunt v. Hunt, 270 S.W. 365. (4) The answer does not state facts sufficient to constitute a cause of action or a defense. The statements in the answer are so vague, indefinite and contradictory that they fall far short of stating facts sufficiently clear, definite and unequivocal to take the alleged agreement out of the Statute of Frauds. Sec. 2169, R. S. 1919; Rogers v. Wolfe, 104 Mo. 9. (5) The judgment of January 9, 1924, and of February 2, 1924, are one and the same judgment. The court had authority to permit plaintiff to amend the judgment of January 9, 1924, by substituting the name of Jerome E. Threlkel for John E. Threlkel, and in doing so the judgment of February 2, 1924, was not a new judgment but only the continuation of the judgment of January 9, 1924, as amended. Secs. 1277, 1550, 1551, R. S. 1919; Parry v. Woodson, 33 Mo. 347. (6) As the record now stands, the judgment rendered was and is valid, and should not be set aside. (a) It disposes of all the issues raised by the pleading and was supported by evidence respecting all issues presented. (b) The action was one at law. The answer did not ask any affirmative relief. The issue was whether plaintiff or defendant had the right to possession because of their title. That is, the right of possession was in the one who had title to the property. (c) The judgment rendered is not violative of the rule that a judgment must be supported by the evidence and be single and complete and dispose of all the parties and issues, and as no such defect appears on the face of the record, the judgment must be pronounced valid. (d) There was evidence bearing on the answer and alleged cross-petition, and the judgment of the court did not violate the guaranty of due process of law, and was not in contravention of Sec. 20, Art. 2, Mo. Constitution. "If a person is afforded a full opportunity to be heard, and neglects to avail himself of it, he is deprived of no constitutional right by a determination adverse to him." 12 C. J. p. 1236, sec. 1009; Hulett v. Ry. Co., 145 Mo. 35. (e) The court gave the defendant a full opportunity to be heard, and his pronouncement was a judicial determination of the issues presented by the pleadings. (f) In order for defendant's answer to be an equitable defense, it must ask for affirmative relief and state facts sufficient to constitute a cause of action. Gray v. Ward, 234 Mo. 296. (7) While a defendant in ejectment may set up an equitable defense and avail himself of Sec. 1970, R. S. 1919, if he desires affirmative relief he must ask it in his answer, as a suit under Section 1970 is an action at law unless affirmative relief is asked. (8) The answer alleged that plaintiff in error had expended money for taxes and making improvements on the property, also alleged that she had purchased the property at tax sales, one allegation contradicting the other. The proof showed that she had not improved the...
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