McIntosh v. Foulke

• Court: Missouri Supreme Court
• Writing for the Court: CONKLING
• Citation: McIntosh v. Foulke, 228 S.W.2d 757, 360 Mo. 481 (Mo. 1950)
• Decision Date: 10 April 1950
• Docket Number: No. 1,No. 41620,41620,1
• Parties: McINTOSH et al. v. FOULKE et al

Page 757

228 S.W.2d 757

360 Mo. 481

McINTOSH et al. v. FOULKE et al.

No. 41620.

Supreme Court of Missouri, Division No. 1.

April 10, 1950.

Luther W. Adamson, Kansas City, Attorney for appellants.

Justin Ruark, Neosho, attorney for respondent.

CONKLING, Judge.

This appeal, presenting only questions of pleading and procedure, is from the circuit court's action in sustaining defendant Emerson Foulke's motion for judgment on the pleadings in a suit to determine the title to real estate.

In the instant action J. A. McIntosh and wife (hereinafter called plaintiffs) sued Emerson Foulke and L. J. Haines (hereinafter called defendants) and alleged that the real estate in question here was sold on November 3, 1941, at a tax sale by the Collector of Revenue of Newton County, and was purchased by plaintiffs at such sale; that a tax deed was issued therefor to plaintiffs and duly recorded on November 29, 1941; that on December 1, 1941, plaintiffs employed defendants as their attorneys to perfect for plaintiffs a marketable title to said land; that in the course of said employment, and with money supplied by plaintiffs, defendants secured two certain deeds to said land, had defendants made grantees therein, and duly recorded said deeds; that defendants were grantees in said deeds without the knowledge or acquiescence of plaintiffs, and that said acts were fraudulent as to plaintiffs; and that on April 6, 1943, as a result of defendants' deceit and false representations, and without any consideration therefor, plaintiffs executed and delivered to defendants a quit claim deed to said land. Plaintiffs prayed the court to adjudge them to be 'the owners of said land' in fee simple.

Defendant Haines, having conveyed his interest in this real estate to Foulke, filed no answer. The answer of defendant Foulke (filed April 9, 1948) denied (1) that he or Haines were ever plaintiffs' attorneys, (2) that he ever had any money of plaintiffs or used any of plaintiffs' money to perfect the title, (3) and all allegations of deceit or false representations. His answer further pleaded affirmatively (1) that he secured the two certain above mentioned deeds from certain heirs to perfect the title, (2) that he had acquired the full title to the land from Haines, and others, and (3) that on April 6, 1943, plaintiffs, for a consideration of about $3500 which was paid them, executed a deed conveying to him their full title. Foulke's answer further pleaded as res adjudicata, and in bar of plaintiffs' instant action, that the issues attempted to be reised by plaintiffs' petition were all adjudicated and settled in a former Newton County suit, No. 9223, filed August 17, 1942, wherein Emerson Foulke and L. J. Haines were plaintiffs, Opal Russell, Treasurer of Newton County was defendant, and J. A. McIntosh and Carrie McIntosh (plaintiffs here) were interpleaders. Foulke's answer set out verbatim the petition in that case, the interplea of J. A. and Carrie McIntosh filed therein, the signed stipulation of the parties settling case No. 9223, and the judgment entered therein on March 29, 1943.

Examination of the pleadings in this case reveals (and the circuit court from those pleadings found) that the identical cause of action which plaintiffs attempted to state in their petition in the instant case was alleged by them in their interplea filed in the former suit, and that the instant issues, among others, were adjudicated in case No. 9223. The same issues between the same parties respecting the same real estate were there involved. By the stipulation of the instant parties, it was, in case No. 9223, agreed that the original tax deed, wherein interpleaders were grantees, be set aside and declared void; that Haines and Foulke be vested with fee simple title to the land in question free of interpleaders' claims; that out of the $1946.39 overplus remaining in the hands of the County Treasurer as the result of the tax sale, the sum of $400 should be paid to interpleaders' counsel, interpleaders should pay certain court costs, and the remainder of said sum should be paid to the interpleaders; that interpleaders should execute to Foulke and Haines a quit claim deed to the land in question; and that a lien against the land should be established in favor of interpleaders in the sum of $1450, the Circuit Clerk to satisfy the lien of the judgment upon receipt of said last sum from Haines and Foulke.

The judgment in that case (No. 9223) recites that on March 29, 1943, the parties and their counsel were present in court and upon the evidence the court made findings of fact and entered a decree as above agreed to by the parties in their stipulation. Thereafter, and on April 6, 1943, the instant plaintiffs (interpleaders in case No. 9223) executed and delivered the quit claim deed to the land to Foulke and Haines, whereupon Foulke paid the Clerk the $1450 required by the stipulation and judgment, and said sum was thereupon paid to the instant plaintiffs. Foulke's answer prays the affirmative relief of an adjudication as absolute owner in fee simple of the land in question, and prays also that the court adjudge that the instant plaintiffs have no right, title or interest therein. Such an answer requires a reply under our statutes.

After the filing of Foulke's answer on April 9, 1948, the plaintiffs on October 11, 1948 filed an application for change of venue and Judge Oldham, Judge of the Circut Court of Jasper County, by agreement was selected as special judge. Under our statutes plaintiffs' reply was due to be filed within 20 days after April 9, 1948, but no reply was filed. But defendant did not waive the failure of plaintiffs to file a reply, and on November 20, 1948 Foulke filed in the cause a motion for an order to require plaintiffs to file their reply, as provided in Mo.R.S.A. Sec. 847.58. See, Plieman v. Belew, Mo.Sup., 227 S.W.2d 733. Plaintiffs agreed that such motion should be sustained, and an order requiring plaintiffs to file a reply within 20 days, was entered on December 9, 1948. Plaintiffs filed no reply and after December 29, 1948 were in default with respect to that order.

On April 16, 1949, no reply having been filed, Foulke filed his motion for judgment on the pleadings. That motion set out the facts respecting defendant's plea of res adjudicata in his answer; alleged that the pleadings and judgment in case No. 9223 'did determine all facts, matters and issues in dispute between the parties or involved in this cause'; called attention to defendant's prayer in his answer asking 'for an affirmative judgment decreeing title in himself', and to the fact that, although ordered to do so, plaintiffs had filed no reply. That motion prayed the dismissal of plaintiffs' petition and also the affirmative relief prayed in the answer.

The motion for judgment on the pleadings came on for hearing on July 5, 1949. At that hearing plaintiffs filed a 'motion for permission to file reply'. At the time of the application for permission to file a reply no reply was offered. It was later offered and appears in the transcript. The court overruled the motion for permission to file a reply, saying (after stating the facts), 'I think under those circumstances that the court would be abusing its discretion to permit the filing of a reply at this time'. On July 12, 1949, the court sustained the motion for judgment on the pleadings, and in its decree for defendant (among other things) noted that (1) plaintiffs failed to deny or plead to defendant's answer, (2) on the pleadings plaintiffs should not recover but that defendant should have the judgment prayed in his answer. The decree adjudged title to the real estate to be in Foulke in fee simple and adjudged plaintiffs had no right or title thereto.

The plaintiffs-appellants make but two contentions, (1) that the court abused its discretion in refusing to allow the filing of a reply, and (2) that it was error to sustain the motion for judgment on the pleadings. These we consider in order.

It is conceded by plaintiffs that the filing of a reply out of time, and under these circumstances, was a matter within the discretion of the court to allow or disallow. See Robyn v. Chronicle Publishing Co., 127 Mo. 385, 30 S.W. 130, Hoffman v. Loudon, 96 Mo.App. 184, 70 S.W. 162, and cases cited. But plaintiffs contend that Foulke's answer 'did not contain a counterclaim', and that inasmuch as the case was at issue no responsive pleading (reply) was required. That contention is answered in our statement above. Not only did Foulke's answer pray the affirmative cross relief of an adjudication as absolute owner in fee simple, but when defendant's motion was filed to require plaintiffs to file a reply, the plaintiffs agreed that such motion might be sustained, and then asked 20 days in which to file such reply. Plaintiffs will not now be heard to contend the case was at issue and that no reply was necessary. The prayer of the answer clearly establishes the contrary.

Plaintiffs next contend it was an abuse of discretion to refuse them permission to file their reply, and rely on Reeves v. Dictograph Products Co., Mo.App., 147 S.W.2d 162. But that case, upon the peculiar facts...