Koplar v. Rosset

• Citation: 214 S.W.2d 417,358 Mo. 350
• Decision Date: 08 November 1948
• Docket Number: 40929
• Parties: Nat Koplar and Marmaduke Apartments, Inc., Appellants, v. Barnet L. Rosset, Individually, Boyle G. Clark, Individually, Barnet L. Rosset, Boyle G. Clark and Lawrence E. Mahan, Voting Trustees Under a Trust Agreement Dated July 1, 1936, of Marmaduke Apartments, Inc.; Metropolitan Trust Company, Individually, Metropolitan Trust Company, Corporate Trustee Under Deed of Trust and Chattel Mortgage Dated July 1, 1936, Between Marmaduke Apartments, Inc., and Certain Bondholders and Stockholders, Respondents
• Court: United States State Supreme Court of Missouri

214 S.W.2d 417

358 Mo. 350

Nat Koplar and Marmaduke Apartments, Inc., Appellants, v. Barnet L. Rosset, Individually, Boyle G. Clark, Individually, Barnet L. Rosset, Boyle G. Clark and Lawrence E. Mahan, Voting Trustees Under a Trust Agreement Dated July 1, 1936, of Marmaduke Apartments, Inc.; Metropolitan Trust Company, Individually, Metropolitan Trust Company, Corporate Trustee Under Deed of Trust and Chattel Mortgage Dated July 1, 1936, Between Marmaduke Apartments, Inc., and Certain Bondholders and Stockholders, Respondents

No. 40929

Supreme Court of Missouri

November 8, 1948

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Appeal dismissed.

J. L London for appellants.

J. Coy Bour, Paul M. Peterson and William H. Becker for respondents.

Barrett C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

This appeal arises out of Koplar v. Rosset, 355 Mo. 496 196 S.W. (2) 800. The immediate question, which the parties have attempted to present, is the appellants' right to file a supplemental petition. Mo. R.S.A., Sec. 847.83; Federal Rule 15 (d); Drake v. Kansas City Pub. Serv. Co., 333 Mo. 520, 63 S.W. (2) 75; Ward v. Davidson, 89 Mo. 445, 1 S.W. 846. After the mandate in the principal case the plaintiffs asked leave to file a supplemental petition (Southern Pac. Co. v. Conway, 115 F. (2) 746, 750) in which they seek to recover for alleged acts of continuing misconduct, acts occurring after the rendition of the decree in the principal case. The trial court was of the opinion that it did not have jurisdiction to try the issues presented by the supplemental petition and leave to file the petition was denied. The appeal is from the order denying leave to file the supplemental petition.

But, upon the record tendered, the obvious challenge of the appeal is the court's jurisdiction, that is whether there was such a final judgment and disposition of the cause (Mo. R.S.A., Secs. 847.126, 1236; S.Ct. Rule 3.24; Bruun v. Katz Drug Co., (Mo.) 211 S.W. (2) 918) that this court may or should entertain jurisdiction of the appeal. More precisely the question upon this record is whether the appeal is premature in that all the issues before the court were not disposed of. Hill-Behan Lumber Co. v. Hammer Dry Plate Co., (Mo. App.) 162 S.W. (2) 348. It may be assumed for the purposes of this opinion that an order dismissing a supplemental petition is a final, appealable judgment. Goodyear Tire & Rubber Co. v. Overman Cushion Tire Co., 66 F. (2) 81; Johnson v. Horton, 63 F. (2) 950. Certainly so when the effect of the order is to completely and finally dispose of the case on its merits in some material respect. 4 C.J.S., Sec. 116c(5), pp. 218-220. In this respect an appeal from an order denying leave to file a supplemental petition is fairly comparable to the dismissal of an intervening petition. City of St. Louis v. Silk, (Mo. App.) 199 S.W. (2) 23. In these instances the rulings have the force of an order sustaining a demurrer to a petition. Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 317 Mo. 610, 613, 296 S.W. 154.

But we are not confronted with that kind of a record in this case. Here, after the judgment of the trial court was affirmed and our mandate to the trial court was filed, the record recites that the respondents as trustees, and purportedly in accordance with our opinion, filed their final report and asked to be discharged. Thereafter, on July 24, 1947, the plaintiffs (the appellants here) were given thirty days in which to file exceptions to the report and, within the allotted time, did file their exceptions to the report. The exceptions are set forth in the record. Among other things the exceptions charge that the parties filed the report and attempted to get a discharge from the judge temporarily sitting in the division when their opponents were unavailable and knowing that they desired to be heard and present evidence against the report. It is charged, in the exceptions, that the respondents "well knew that they were liable . . . for other substantial sums of money as a result of their conduct and overt acts since the rendition of the Decree of this Court on July 13, 1945." It is further alleged in the exceptions that the report was filed after notice of the plaintiffs' intention to file a supplemental petition. The substance of the proposed supplemental petition is then set forth and, among other things, it alleges that the respondents have become indebted for further expenses and additional items totalling $ 16,350.00. Finally, it is alleged in the exceptions that "this court retained jurisdiction of this cause, by its Decree of July 13th, 1945, to review and pass upon said acts of the defendants, . . ."

The proposed supplemental petition, upon which this appeal is based, does not cover, of course, all the objections the appellants might have to the proposed settlement but it does seek recovery for "continuing transactions or occurrences both as Trustees and individually." The petition realleges by reference the thirty-eight paragraphs and prayer of the original petition, it alleges that the respondents failed to comply with the demands of the...