McFadden v. Mullins
| Decision Date | 08 January 1940 |
| Citation | 136 S.W.2d 74,234 Mo.App. 1056 |
| Parties | CORA McFADDEN ET AL., APPELLANTS, v. EDWARD J. MULLINS ET AL., RESPONDENTS |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.
AFFIRMED.
Judgment affirmed.
Fred A Benz and H. K. Bente for appellants.
(1) To cancel and hold for naught, the deed, there first had to be filed before the court an appropriate Bill in Equity therefor. Dorsett v. Dorsett, 90 S.W.2d 188; 21 C J., p. 157, par. 117; Riggs v. Moise et al., 128 S.W.2d 632; and as a reason therefor, such bill must allege (a) Accident, Crossan v. Noll, 120 S.W.2d 189, or (b) A mutual mistake, Conrath v. Houchen, 34 S.W.2d 190; Wilhite v. Wilhite, 284 Mo. (2d) 387, or (c) Fraud practiced upon the grantor by grantee, in its execution, Crossan v. Noll, 120 S.W.2d 189; Turner v. Turner, 44 Mo. 535; Fadler v. Gabbert, 333 Mo. 851. (2) The legal character of plaintiff's original and second amended petition are to be determined by their substance and not by their names ascribed by the pleader. State ex rel. v. Ellison, 266 Mo. 423, 420; Pier v. Heinrichoffen, 52 Mo. 333; In re Conner's Estate, 254 Mo. 65, 76; Dinkleman v. Hovekamp, 336 Mo. 567; (3) That such said equitable jurisdiction can extend only to issues therein, and no such plea or allegations appear in the records of this case. Uhrig v. Lumber Co., 110 S.W.2d 412; Owen v. McCleary, 273 S.W. 145; Pevesdorf v. Power Co., 333 Mo. 1155. (a) and the original petition and deed should have been admitted into evidence, to show the lack of equitable averments in petition, and (b) to show the requisites of an equitable plea to set aside said deed. (4) Both plaintiffs' original and amended petitions purport or attempt to state a cause of action at law, because of breach of contract and for damage, neither of which said pleas contain the necessary equitable averments to divest title to the lands in question. Bragg v. Machine Co., 225 Mo.App. 902; Carpenter v. St. Joseph, 263 Mo. 705, 711; Palmer v. Marshall, 24 S.W.2d 229. (5) That since plaintiff's said original and amended petitions do not contain the necessary allegations to show that plaintiff (appellants) have no complete and adequate remedy at law. Ry. Co. v. Commission, 17 S.W.2d 535; Congregation v. Arky, 20 S.W.2d 899; Somervill v. Hollman, 210 Mo. (1), 567, 574. (a) And the said original petition herein therefore, stating no cause in equity or at law, for the specific relief sought. Texas Pipe Line Co. v. Stewart, 35 S.W.2d 627; Harding v. Lee, 51 Mo. (2d) 241, 245; Sec. 1826, Mo. Stat. 1929, and cases annotated thereunder. (b) It could not be amended to state a cause for the relief sought, without stating a changed cause of action. Dahlberg v. Fisse, 40 S.W.2d 606; Harding v. Lee, 51 Mo. (2d) 241, 245; Palmer v. Marshall, 24 S.W.2d 229. (c) Which failure and departure could be shown only by the instroduction into evidence, the abandoned said, plaintiff's original petition and the trial court therefore erred in excluding same from the offered evidence. Woods v. Wells, 270 S.W. 332, and cases cited. (d) It therefore appears on the face of this record that the trial court thereon and thereby took and had no jurisdiction over the subject-matter, to determine any issue therein, Am. Fire Assur. Co. et al. v. O'Malley, 113 S.W.2d 795; Combs v. Benz et al., 114 S.W.2d 713; Sanders v. Savage, 129 S.W.2d 1061; See 774, R. S. Mo., 1929. (e) And that its judgment of November 1, 1937, was absolutely void and can bind no one. United Creameries Co. v. Strother et al., 119 S.W.2d 762; Abernathy v. R. R. Co., 287 Mo. 30; 34 C. J., p. 217, par. 439, note 32; 21 C. J., p. 168, par. 149, notes 82 to 86; Paper Co. v. Box Co., 97 S.W.2d 862; Construction Co. v. McGonnigle, 338 Mo. 56. (6) And since it further so appears that plaintiff (appellants) was not entitled to the relief prayed, it then became and was the trial court's duty, sua sponte, to dismiss said cause and to set aside and vacate said judgment. Wilderman v. Roth, 9 F. (2d), (1, 2), 637; Deitrick v. Gromley, 10 F.Supp. 441; Stevens v. De La Vaulx, 166 Mo. 20; LaRue v. LaRue, 317 Mo. 207. (7) And the trial court therefore erred in refusing to sustain appellants' motion to set aside and vacate said judgment. Harrison et al. v. Slaton et al., 49 S.W.2d 31; Robinson v. Const. Co., 72 S.W.2d 127; D. C. Wise Coal Co. v. Zinc Co., 123 Mo.App. 249, 266; Dewey v. Power Co., 83 S.W.2d 203; Kristanik v. Motor Co., 70 S.W.2d 890.
Montgomery & Salveter for respondents.
(1) The second amended petition to which answer was duly made and issue joined constituted an abandonment of all prior pleadings and the judgment rendered on the second amended petition and answer, is regular in all respects. Sec. 819, R. S. Mo. 1929; Bobb v. Bobb, 89 Mo. 411; State ex rel. Johnston v. Hiller, 295 S.W. 132; Hubbard v. Quisenberry, 32 Mo.App. 459; W. T. Rawleigh Medical Co. v. Abernathy, 196 S.W. 1042; Sutermeister v. Sutermeister, 209 S.W. 955. (2) The judgment at bar being regular, it cannot be vacated upon this motion which was filed at a subsequent term. Sec. 1101, R. S. Mo. 1929; Harrison v. Slaton, 49 S.W.2d 31; Curtis v. Bell, 131 Mo.App. 245, 111 S.W. 131; Orvis v. Elliott, 65 Mo.App. 96; Robinson v. Martin Wunderlich Const. Co., 72 S.W.2d 127.
This is an appeal duly taken from an order overruling appellants' motion to vacate a judgment rendered in the cause at a term of court prior to that in which the motion was filed. Such a motion directed to irregularity of a judgment, if filed within three years after the judgment term, is authorized under Section 1101, Revised Statutes Missouri, 1929.
The original suit herein was instituted on August 20, 1937, by one David F. Ross, now deceased, against respondents, Edward J. Mullins and Fleeta Mullins. The original petition was twice amended. On September 17, 1937, the second amended petition was filed, whereby it was alleged, in substance, as follows:
Plaintiff on and prior to April 13, 1936, was the owner of certain described real estate of approximately one hundred acres. On April 13, 1936, through false and fraudulent representations and promises of defendants to maintain a home for plaintiff and to care and provide for plaintiff so long as he should live, which promises were never intended by defendants to be kept, plaintiff was induced to convey said real estate to defendants as tenants by the entirety. As soon as plaintiff's deed was executed and recorded, defendants began to breach said agreement, both in letter and spirit. Numerous specific acts, constituting violations of the promises which induced plaintiff to execute the deed, were alleged, including acts of abuse and humiliation of plaintiff that would make plaintiff's further association with defendants on said premises intolerable.
It was alleged that defendants were totally insolvent, except for plaintiff's farm, and could not respond in damages and that, under the circumstances, plaintiff had no adequate remedy at law. Whereupon, plaintiff prayed that the deed to said lands be set aside and cancelled, and that plaintiff be decreed to be the owner in fee simple of said lands, and for such further relief as to the court might seem just and proper.
In the second count of the petition, plaintiff undertook to state an action in unlawful detainer.
Without challenging this second amended petition in any manner, defendants, in due time, filed a joint answer, in which defendants admitted the conveyance of the property by plaintiff to them and their agreement to care and provide for plaintiff so long as he should live and upon his death to give him a decent burial. Defendants then denied that they had breached any of the provisions of this agreement, and that they had been and were then able and willing to carry out all the terms of said agreement.
On September 21, 1937, trial was had of the issues thus joined, at the conclusion of which the court took the case under advisement, and, thereafter, and at the first day of the November, 1937, term of court, the following judgment was rendered:
Motion for new trial was duly filed, and on February 11, 1938, was overruled. The plaintiff did not appeal from this judgment, nor has any writ of error ever been sued out.
After the expiration of the term at which plaintiff's motion for new trial was overruled, and after the further intervention of the May and September terms of court, and at the November, 1938, term of court, and to-wit, on December 19, 1938, plaintiff having employed new counsel, filed his motion to vacate said judgment. Before said motion was heard by the court, the said Ross, plaintiff in the original proceeding, died on February 17, 1939, and on February 24, 1939, the heirs at law of said David F. Ross filed a motion to be substituted as plaintiffs in this cause, which said motion was sustained. Thereafter, on March 1, 1939, and in the February, 1939, term of court, said substituted plaintiffs filed an amended motion to vacate and set aside the judgment (quoting therefrom):
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