Keltner v. Threlkel

• Decision Date: 29 January 1927
• Citation: 291 S.W. 462
• Parties: KELTNER v. THRELKEL. (No. 25689.)
• Court: Missouri Supreme Court

291 S.W. 462

KELTNER v. THRELKEL. (No. 25689.)

Supreme Court of Missouri, Division No. 1.

January 29, 1927.

Motion for Rehearing Overruled February 16, 1927.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Ejectment by Clara D. Keltner against Luia M. Threlkel and another, who disclimed. Judgment for plaintiff, and defendant brings error, and from an order overruling a motion to set aside the judgment, she appeals. Reversed and remanded.

L. N. Dempsey and J. M. Johnson, both of Kansas City, for Plaintiff in error.

M. A. Fyke, J. C. Hargus, and A.N. Adms, all of Kansas City, for defendant in error.

RAGLAND, J.

This case comes to the writer for an opinion on reassignment. It is an action in ejectment for the recovery of lots 11, 12, 23, and 24, in block E, Bismark place, an addition in and to Kansas City. It was commenced in the circuit court of Jackson county, at Independence, on the 11th day of April, 1923, by Clara D. Keltner, as plaintiff, against Jerome E. Threlkel and Lula M. Threlkel, as defendants. The petition was conventional. The answer of Jerome E. Threlkel consisted of a general denial and a disclaimer of any interest in the premises. The pleading on the part of the defendant Lula M. Threlkel was in two counts. The first consisted of a general denial; the second, so far as material here, was as follows:

"Comes now defendant Lula M. Threlkel and states that she is the legal and equitable owner and in possession of the land described in plaintiff's petition. * * * Defendant further states that she has been in peaceable, open, and notorious adverse possession of the premises described in plaintiff's petition for more than five years prior to the institution of this suit as the owner of the equitable and legal title, and entitled to the record legal title thereof by virtue of the plaintiff and other interested parties telling this defendant to take said premises as the owner and make and pay for the improvements, taxes, and whatever costs that might come against said premises; that defendant, relying upon said statements and representations, went into possession of said premises claiming to own the same and has performed a great deal of labor on and about said premises in the improvements of the same, and has worked for the betterment of the same and has secured a sewer adjoining said premises on Broadway and Central street, and has procured the grading of Fiftieth street, paving and curbing of the same in front of said premises, and has graded the land and put in an expensive sewer on said premises, and all improvements on Central street fro Fiftleth north 100 feet and the grading of Wornall road and the grading of Brookside extension, Lindwood extension, Pershing road, and numerous other special taxes, aside from state, county and school taxes, all of which improvements defendant worked for and paid the taxes and made other valuable and lasting improvements in the way of repairing the dwelling house located on said premises and removing parts of said house that were dangerous and ordered taken down by the city building inspector; that defendant has paid out and expended in good faith in the payment of taxes and other improvements on said premises claiming to own the same, a sum in excess of $4,000; that all of said work done by defendant on and around said premises and all the money paid out for taxes and other improvements on said premises was done in good faith by defendant as the owner of said premises; that plaintiff is estopped to claim the ownership of said land after having told defendant to take possession of said land and make and pay for improvements and taxes, and defendant, relying thereon in good faith, has acted on said statements and spent her money, time, and labout honestly believing that she was the owner of said land, it would be fraud on the part of plaintiff to claim ownership in said land, and she is estopped to claim to be the owner of said land; that plaintiff has been aware all the time that defendant was in good faith making improvements on and in connection with said land and expending money and performing labour in the improvement of said land claiming to own the same; that during all these time that defendant has been on said land plaintiff stood by and made no claim to said land until the spring of 1923; that taking together the actual money that defendant has expended in the improvement of said land and interst thereon from the various times said money was paid out and expended, the defendant has given at least $5,000 for said land and on account of the same besides the trouble she has been to in preserving said property and in improving the same, aside from all the labor that defendant has put on said land and the time she has spent in and about the preservation and improvement of the same and the worry and annoyance defendant has suffered on account of the burden put on her on account of said land; that defendant is legally and equitably entitled to said land.

"Defendant states that said land is of a reasonable value of about &4,000, or of considerable less value than defendant has expended in the honest belief that she was the owner of said land. * * *

"Wherefore, defendant prays the court to adjudge and determine the respective rights of the plaintiff and defendant in and to the land described in plaintiff's petition and to adjudge that defendant is the owner of the equitable and legal title to said land, and that plaintiff has no interest in and to the same, and that plaintiff is estopped to claim any interest in said land, and for such other and further relief as to the court shall seem meet and proper in the premises."

The cause was at issue, and was docketed for trial in the circuit court at Independence, on Monday, January 7, 1924. On that day the defendant, Lula M. Threlkel (hereinafter designated as the defendant in said cause), made application for a change of venue, on the ground that the judge who was presiding over that division of the circuit court of Jackson county was biased and prejudiced against her. The application was sustained, and the cause thereupon ordered transferred to Division 1, at Kansas City. On the afternoon of that day, January 7th, defendant's attorney applied to the clerk of Division 1 for a subpæna for her witnesses, but the clerk refused to issue a subpæna on the ground that, as he had not received the papers and transcript of the record in the cause from Independence, the cause was not then pending in his division. Twice during the morning of January 8th and again at 2 o'clock in the afternoon of that day defendant through her attorney requested the issuance of a subpæna for her witnesses, but in each instance the request was denied on the ground that the transcript had not been received. Later in the afternoon of January 8th, however, she succeeded in getting a subpæna for her witnesses, all of whom, 16 in number, lived in Kansas City, and placed it in the hands of the sheriff. On the next morning, January 9th, on the convening of court, the case was called for trial. Plaintiff announced ready. Defendant announced that she was not ready because none of her witnesses were in attendance. None of them had in fact been served ; the sheriff had made a return of non est as to all of them, giving as his reason that he did not have sufficient force to serve them—had not received the subpæna in time for service. Her attorney asked for time in which to prepare a written application for a continuance; this request was denied, the court directing him to state his grounds orally to the court stenographer. In that statement, after detailing his efforts to secure and have served a subpæna for defendant's witnesses as heretofore noted, he rehearsed the facts to which the witnesses for whom the subpæna had been issued would testify if present. Such testimony would have tended to establish the averments of the second count of defendant's pleading. At the conclusion of his statement the court overruled defendant's application for a continuance and directed counsel to proceed with the trial. Defendant thereupon withdrew and declined to further appear in the cause. The trial then proceeded ex parte. Plaintiff introduced evidence which tended to show a legal title in fee to the premises in herself, the amount of her damages, and the monthly value of the rents and profits. When her proof was in the court rendered judgment for her, which, according to the additional abstract filed by the defendant in error, was as follows:

"Now on this day this cause having been transferred to this Division No. 1 of this court by change of venue from the...