Madden v. Fitzsimmons

• Citation: 150 S.W.2d 761,235 Mo.App. 1074
• Parties: THOMAS R. MADDEN, AS ADMINISTRATOR IN CHARGE OF THE ESTATE OF JULIUS DRANZ, DECEASED, PLAINTIFF IN ERROR, v. JAMES J. FITZSIMMONS, AS SHERIFF OF THE CITY OF ST. LOUIS, AND ANNA JANOSIK, DEFENDANTS IN ERROR
• Decision Date: 06 May 1941
• Court: Missouri Court of Appeals

150 S.W.2d 761

235 Mo.App. 1074

THOMAS R. MADDEN, AS ADMINISTRATOR IN CHARGE OF THE ESTATE OF JULIUS DRANZ, DECEASED, PLAINTIFF IN ERROR, v. JAMES J. FITZSIMMONS, AS SHERIFF OF THE CITY OF ST. LOUIS, AND ANNA JANOSIK, DEFENDANTS IN ERROR

Court of Appeals of Missouri, St. Louis

May 6, 1941

Original Proceeding for Writ of Error to review final judgment of Circuit Court.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Wm. J Blesse and William Kohn for plaintiff in error.

(1) The second amended petition stated a cause of action against defendants. Sec. 1519, R. S. Mo. 1929; Oldham v Wade, 273 Mo. 231, 248, 200 S.W. 1053; Macklind Inv. Co. v. Ferry (Mo.), 108 S.W.2d 21, 24; Mathias v. Arnold (Mo. App.), 178 S.W. 264; Long v. Palisades Bank (Mo. App.), 198 S.W. 1129; Rookery Loan & Inv. Co. v. Johnson (1922), 294 Mo. 461, 492. (2) Plaintiff in error, as administrator of the estate of Julius Dranz, deceased, being aggrieved by the judgment of the circuit court, has a right to proceed in this court by writ of error to set aside the judgment. Marr v. Hanna (Ky.), 7 J. J. Marsh, 642; Heador v. Turner, 6 Ala. 66; 2 R. C. L., page 67, sec. 49; 3 C. J. 1020, secs. 974, 975.

J. E. Patton for Anna Janosik, defendant in error.

Louis B. Sher for James J. Fitzsimmons, defendant in error.

Fugel et al. v. Becker, Secretary of State (Mo.), 2 S.W.2d 743, 746: "Where an event occurs which renders a decision unnecessary the appeal will be dismissed. 3 C. J., 360, sec. 115. Lapse of time may create a condition which may cause the controversy involved in a case to become a mere moot question. See 3 C. J. 364." Wallace v. McClendon, 289 Pa. 354. A judgment creditor, after exhausting his legal remedies, may either sue to set aside fraudulent conveyance of judgment debtor's land, or may buy such lands on execution sale and later sue to set aside fraudulent deed as cloud on title. Littick v. Means (Mo. in banc), 195 S.W. 729; Bimmerle v. Langdeau, 258 Mo. 202, 167 S.W. 532; Oldham v. Wade, 273 Mo. 231, 200 S.W. 1053.

BENNICK, C. Hughes, P. J., and McCullen and Anderson, JJ., concur.

OPINION

BENNICK, C.

--This is a proceeding by writ of error sued out in this court to review a final judgment rendered in the Circuit Court of the City of St. Louis in an injunction suit brought by one Julius Dranz, as plaintiff, against James J. Fitzsimmons, Sheriff of the City of St. Louis, and Anna Janosik, as defendants. Dranz died after the expiration of the term at which final judgment had been entered dismissing his cause of action at treble costs against him; and this proceeding has been instituted by Thomas R. Madden, the duly appointed and acting administrator of Dranz' estate.

The case below, which was instituted on August 3, 1938, was an injunction suit in which plaintiff, Dranz, the alleged owner of certain real estate in the City of St. Louis, sought to enjoin the sale of the same by defendant Fitzsimmons, the sheriff, under an execution issued upon a judgment previously obtained in the same court by defendant Janosik against one Louise Clark, whose name, so plaintiff's petition alleged, had "appeared of record in the chain of title to said property between the years 1932 and 1935."

Three petitions of plaintiff, Dranz, were successively adjudged wholly insufficient upon demurrers separately interposed by defendant Janosik alone; and following the sustaining of the demurrer to the third, or second amended, petition, the court, in attempted obedience to the mandatory requirement of section 948, Revised Statutes of Missouri, 1939 (Mo. Stat. Ann., sec. 796, p. 1046), entered judgment dismissing plaintiff's cause of action at treble costs assessed against him.

It is to be observed in passing that the court, by its judgment, dismissed plaintiff's cause of action in its entirety, that is, as to both defendants, and not merely as to defendant Janosik, as to whom the three petitions had been adjudged wholly insufficient on demurrers separately interposed. Evidently the court regarded defendant Fitzsimmons, the sheriff, as being only officially, and not substantially, interested in the case (Wayland v. Kansas City, 321 Mo. 654, 12 S.W.2d 438), and therefore, upon holding three petitions wholly insufficient as to defendant Janosik, the judgment creditor, who had caused the execution to be issued, dismissed plaintiff's entire cause of action, notwithstanding the fact that the petitions had not been directly adjudged insufficient as to defendant Fitzsimmons. Whether it was proper for the court, under the circumstances, to dismiss the cause as against both defendants, we need not say, since no such point is made by plaintiff in error in his assignment of errors in this court. [Everett v. Glenn, 225 Mo.App. 921, 35 S.W.2d 652.] It suffices for our purposes that the judgment as entered purported to be final as to all the parties; and our review of it will not extend beyond the matters specifically raised for our decision.

The sole point made by plaintiff in error is that the court erred in sustaining defendant Janosik's demurrer to plaintiff's second amended petition, and in rendering judgment against plaintiff dismissing his cause of action at treble costs assessed against him.

Whether or not such second amended petition stated facts sufficient to constitute a cause of action in plaintiff's favor is to be determined from a consideration of the following material allegations contained therein:

"For his cause of action against the defendants, plaintiff states that he is now, and for many years last past has been, the sole owner and in possession of the following described real estate . . .:

"Nevertheless, although plaintiff is, and was at the time herein mentioned, the sole owner and in possession of the above described real estate, the defendant Anna Janosik caused an alias execution to be issued by the Clerk of the Circuit Court of the City of St. Louis Missouri, under and upon a judgment which she recovered against one Louise Clark in said court, said execution being returnable to the September Term, 1936, . . . directed to the defendant James J. Fitzsimmons, as Sheriff of the City of St. Louis, and caused said sheriff on or about July 15, 1938, to levy the said execution upon and against the above-described real estate of the plaintiff, who did, on or about said 15th day of July, 1938, commence to advertise said property for sale . . . thereby giving notice that all of the right, title, interest, claim, estate, and property of the said Louise Clark of, in, and to the above-described real estate will be sold on the 8th day of August, 1938, for the purpose of satisfying the said judgment of said defendant Anna Janosik against said Louise Clark.

"Plaintiff further states that he was not a party to the action in which said judgment was rendered, and that the said Louise Clark does not now, and did not at the time of the rendition of the aforesaid judgment, have or own any right, title, interest, or estate in and to the above described real estate, but that said property at all times belonged to and was owned by this plaintiff, and he has been for about fourteen years last past in actual and continuous possession of said property. . . .

"Plaintiff further states that the sale of the aforesaid real estate under and by virtue of said levy and execution against the said Louise Clark would cast and create a cloud upon the title thereto and upon the right, title, interest, and estate of plaintiff therein, the name of said Louise Clark having appeared of record in the chain of title to said property between the years 1932 and 1935, and that unless the defendant James J. Fitzsimmons, as Sheriff of the City of St. Louis, is restrained, he will offer for sale and sell the said real estate under said execution, and that if such sale is made by the said sheriff, great and irreparable injury will thereby result to plaintiff and to his interest, title, and estate in and to the said real estate, and that any deed, and the record of any deed, of the said James J. Fitzsimmons, as Sheriff of the City of St. Louis, will cast a cloud upon plaintiff's title to said property, and will deprive plaintiff of the power to mortgage, lease, sell, or dispose of his real estate, and such sale and such deed would destroy the selling, trading, and loan value of said real estate. . . .

"Plaintiff further states that unless permanently enjoined, defendant Janosik will, and is about to, continue to cause executions to be issued under and upon said judgment, and to cause the same to be levied upon plaintiff's said property, and to advertise the same for sale, and to attempt to sell the same thereunder, and thereby to repeatedly cause to be cast clouds upon the title to said real estate and upon plaintiff's right, title, interest, and estate therein, and has threatened to do so, and thereby will in the future cause plaintiff great and irreparable injury in the manner aforesaid, and unless defendants are permanently enjoined, plaintiff will be compelled to resort to repeated applications for injunctions and be subject to the expense incident thereto, resulting in a multiplicity of suits for such injunctions.

"Plaintiff further states that the defendant Anna Janosik is wholly insolvent and unable to respond in damages, and that plaintiff has no adequate remedy at law, and unless the defendants are restrained and enjoined from selling the real estate under said execution, plaintiff will suffer irreparable damage.

"Wherefore plaintiff prays that the defendants and each of them be permanently and perpetually restrained and enjoined from carrying out their purpose of selling said real estate under and by virtue of the said execution or any execution issued, or...