Krahenmann v. Schulz

• Citation: 109 S.W.2d 889,233 Mo.App. 852
• Parties: KATHERINE KRAHENMANN, RESPONDENT, v. ALICE SCHULZ, WILLIAM SCHEER, AND JULIA SCHEER, DEFENDANTS, WILLIAM SCHEER AND JULIA SCHEER, APPELLANTS
• Decision Date: 02 November 1937
• Court: Court of Appeal of Missouri (US)

109 S.W.2d 889

233 Mo.App. 852

KATHERINE KRAHENMANN, RESPONDENT, v. ALICE SCHULZ, WILLIAM SCHEER, AND JULIA SCHEER, DEFENDANTS, WILLIAM SCHEER AND JULIA SCHEER, APPELLANTS

Court of Appeals of Missouri, St. Louis

November 2, 1937

Motion for rehearing denied November 19, 1937.

Writ of certiorari denied February 5, 1938.

Rehearing Denied 233 Mo.App. 852 at 857.

Appeal from the Circuit Court City of St. Louis.--Hon. O'Neill Ryan, Judge.

AFFIRMED.

Judgment affirmed.

Stonewall J. Walton and Henry Elias Haas for appellants.

(1) The verdict in the instant case is clearly excessive in that it embraces items of damages which accrued long before the redemption bond sued on was alleged to have been executed. The rule appears to be well established that bonds of any character are prospective in their operation, and are not to be construed as retrospective unless the language of the bond, and the statute under which it is given, is so clear and unambiguous as to admit of no other construction. Stearns on Suretyship (4 Ed.), p. 204, sec. 129; State ex rel Bank v. Finn, 98 Mo. 532, par. 1; State to use of Lancaster v. Jones, 89 Mo. 470, par. 4, l. c. 480; State ex rel. v. Alsup, 91 Mo. 172, par. 2; Stevenson v. Union Indemnity Co., 28 S.W.2d 346 pars. 1 and 4, 160 Tenn. 603, par. 3; Schwarze v. New Amsterdam Casualty Co., 136 Okla. 51, par. 1; Sipes v. Ardmore Book & News Co., 138 Okla. 180, par. 1; 27 Amer. & Eng. Ency. of Law (2 Ed.), 442; 2 Brandt on Suretyship (3 Ed.), sec. 625; 43 A. L. R., 992; 62 A. L. R 407, 422; 77 A. L. R. 868; 98 A. L. R. 1276. (2) All statutory bonds are to be construed as though the law requiring and regulating them was written into them and the statute itself must be so construed as to harmonize with the Constitution for the reason that there is a strong presumption that the Legislature did not intend to pass an unconstitutional act. The Constitution of Missouri expressly provides that the Legislature "shall pass no law retrospective in its operation," and hence the uniform rule is that statutes are to be given a prospective operation only. Constitution of Missouri, art. 2, sec. 15, and art. 12, sec. 19; Biedermann v. Mermod, Jaccard & King Jewelry Co., 210 Mo.App. 158, par. 2, 242 S.W. 126, par. 2; Royal Arcanum v. Heitzman, 140 Mo.App. 105, par. 2; State ex rel. v. Wright, 251 Mo. 325, 344; State ex rel. v. Wofford, 121 Mo. 61, par. 4; Bartlett v. Ball, 142 Mo. 28, 35; State ex rel. v. Dirckx, 211 Mo. 568, par. 3; Jamison v. Zausch, 227 Mo. 406, 417; Reed v. Swan, 133 Mo. 100, par. 2; 59 Corpus Juris, 1159, sec. 692; State v. Moody, 202 Mo. 120, 127; Zellars v. National Surety Co., 210 Mo. 86, par. 4; Fogarty v. Davis, 305 Mo. 288, 294. (3) Plaintiff was not entitled to recover the delinquent taxes for the years 1931 and 1932, but we are willing to concede that she may be entitled to recover the additional interest and penalties that may have accrued on account of said back taxes "during such year allowed for redemption." Our Supreme Court has repeatedly ruled that taxes are an encumbrance against property, and the redemption statute expressly provides that the obligee in the bond may recover "all interest which the purchaser at the sale may pay on any prior encumbrance on the land as well as the interest which may accrue thereon during such year allowed for redemption." Sec. 3064, R. S. of Mo. 1929; Blossom v. Van Court, 34 Mo. 390, 394; Morey Engineering & Construction Co. v. St. Louis Artificial Ice Rink Co., 242 Mo. 241, par. 2, l. c. 249; Commerce Trust Co. v. Syndicate Lot Co., 208 Mo.App. 261, 274, 235 S.W. 150, par. 2; Maddocks v. Stevens, 89 Me. 336; Cochran v. Guild, 106 Mass. 29; 4 Words & Phrases (1st Series), p. 3526, under the subject, "Incumbrance on Title;" Bouvier's Law Dictionary, Title "Incumbrance;" Blacks' Law Dictionary, Title "Incumbrance." (4) The verdict is further excessive in that it includes items of damage which accrued after the bond became functus officio. The record shows that the foreclosure sale was had on April 20, 1933, and that the suit to redeem the property was dismissed by the Circuit Court of the City of St. Louis on the 25th day of April, 1934. By the terms of the statute the redemption bond was only intended to secure items of damage accruing "during such year allowed for redemption," and not afterwards. Yet in the court below plaintiff was allowed to recover the additional interest and penalties which accrued on the delinquent taxes up to the 10th day of August, 1934. After the redemption suit was dismissed on April 25, 1934, the property became the plaintiff's and any delay in the payment of the taxes could not be charged against the bondsmen. Sureties appointed for a limited time are liable only for defaults occurring during that period. Moreover, it was respondent's plain duty to minimize the damages. 1 Brandt on Suretyship (3 Ed.), secs. 185, 186; Stearns on Suretyship (4 Ed.), sec. 156; 9 Corpus Juris, p. 40, sec. 65, note 65; Moss v. State, 10 Mo. 214; Ida County Savings Bank v. Seidensticker, 128 Iowa 54, 58, citing Mo. case; Blades v. Dewey, 136 N. Car. 176; O'Brien v. Murphy, 175 Mass. 253, 254; 8 Amer. & Eng. Ency. of Law (2 Ed.), 605; Bradfield v. Kansas City, 204 S.W. 819, par. 1; Coal Co. v. Brick Co., 66 Mo.App. 296, par. 4. (5) Where the verdict is found to be excessive and the excess is a fixed, determinate and segregated amount, the appellate court has the power to "pinch out, eliminate and excise the false items" and affirm the judgment as to the residue. But this power is only exercised in cases where the excess clearly appears from the record. It is not the duty of the appellate court to make intricate calculations, or to receive new figures dehors the record, for the reason that this is a reviewing court and not a trial court. In such a case there is nothing to do but to remand the cause for a new trial. 2 R. C. L. 279, and cases cited under note 5; 3 Amer. Jurisprudence 683, note 8; 4 C. J. 1139, sec. 3137; 4 C. J. 1143, sec. 3147; 18 Ency. Plead. & Prac. 128, note 1 and Mo. cases cited; De La Villina v. De La Villina, 90 Fla. 905, 906; Elks Club v. Adair, 95 Fla. 415, par. 2; In re Aiken, 262 Mo. 403, 420, 171 S.W. 342, par. 11; Albers Commission Co. v. Spencer, 139 S.W. 321, par. 7; Kennedy v. Portman, 97 Mo.App. 253, par. 4; Thero v. Railroad, 144 Mo.App. 161, par. 6; Hunter v. City of Mexico, 49 Mo.App. 17, par. 2; Ibers v. O'Donnell, 25 Mo.App. 120, par. 4; Slattery v. City of St. Louis, 120 Mo. 183, par. 4; Whitehead v. Kennedy, 69 N.Y. 462, 469. (6) There is another cogent reason for remanding this cause for a new trial in that it appears from the pleadings that plaintiff's right to recover anything at all is "a disputed question of fact." And it is expressly provided by statute that "any issue of fact must be tried by a jury" and where a money judgment is sought to be recovered the jury, and not the court, "shall assess the amount of the recovery," if any. Secs. 930, 948, 973, R. S. of Mo. 1929. (7) Where a remittitur is ordered by the appellate court it is proper to assess the costs of the appeal against the respondent. This, for the reason that the statute expressly provides that "the party prevailing shall recover his costs against the other party." Sec. 1242, R. S. of Mo. 1929; Trustees v. Hoffmann, 95 Mo.App. 488, par. 12; Meyer v. Insurance Co., 95 Mo.App. 721, par. 7; Miller v. Hardin, 64 Mo. 545, par. 2; Clark v. Bullock, 65 Mo. 535, par. 2; Peck v. Childers, 73 Mo. 484, par. 2; Smith v. Railroad, 92 Mo. 359, 375.

Dubail, Wilson & Judge for respondent.

(1) Johnson v. Atchison, 90 Mo. 48, 1 S.W. 751; Walmsley v. Dougherty, 163 Mo. 298, 63 S.W. 693. (a) The bond was prospective in its operation. Reed v. Swan, 133 Mo. 100, 34 S.W. 483; Supreme Camp of Royal Arcanum v. Heitzman, 140 Mo.App. 105, 120 S.W. 628. (b) The function of the court is not to legislate, but to construe the statute as it finds it. State v. Christup, 337 Mo. 776, 85 S.W.2d 1024. (c) The word "accrued" is in the statute and in the bond, and effect must be given to it. 13 C. J. 527; State ex rel. Dean v. Daues, 14 S.W.2d 990; Castillo v. State Highway Commission, 312 Mo. 244, 279 S.W. 673. (d) "All taxes and assessments and interest and costs thereon whether general or special accrued and accruing during such year for redemption" means taxes due and payable at the time the bond is signed and taxes becoming due and payable during the year allowed for redemption. 1 C. J. 733; 1 C. J. S. 761, et seq.; New Order B. & L. Ass'n v. 22 Chancellor Avenue, 149 A. 525, 106 N.J.Eq. 1; Johnston v. Ragan, 265 Mo. 920, 178 S.W. 159. (2) Orr v. Rode, 101 Mo. 387, 13 S.W. 1066; Davenport v. Silvey, 265 Mo. 543, 178 S.W. 168. (3) If the verdict be excessive, the excess clearly appears from the record and the statutes of Missouri, of which this court takes judicial notice. Laws Mo. Ex. Sess. 1933-34, p. 166; Sec. 9952, R. S. Mo. 1929, amended Laws Mo. 1933, p. 429; Sec. 9969, R. S. Mo. 1929, amended, Laws Mo. 1933, p. 426, l. c. 429. (4) The jury passed on the issues of fact as required by our law. (5) We do not come into this court admitting an excessive judgment.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

This is an action on a redemption bond executed to plaintiff, Katherine Krahenmann, by defendant Alice Schulz as principal, and William Scheer and Julia Scheer as sureties, in the sum of $ 1250.

On April 20, 1933, at a foreclosure sale under a deed of trust on certain property situated on Park Avenue, in the City of St. Louis, the plaintiff, Katherine Krahenmann, who was the holder of the deed of trust became the purchaser of the property. On May 10, 1933, defendant Alice Schulz, the maker of said deed of trust and the...