Merchants' Sav. & Loan Ass'n of Kansas City v. Ancona Realty Co.

• Citation: 78 S.W.2d 470,229 Mo.App. 714
• Parties: MERCHANTS SAVINGS & LOAN ASSN., RESPONDENT, v. ANCONA REALTY COMPANY, APPELLANT
• Decision Date: 28 January 1935
• Court: Court of Appeals of Kansas

78 S.W.2d 470

229 Mo.App. 714

MERCHANTS SAVINGS & LOAN ASSN., RESPONDENT, v. ANCONA REALTY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

January 28, 1935

Appeal from the circuit court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

William B. Dickinson and Martin B. Dickinson for respondent.

Marcy K. Brown for Ancona Realty Co.

H. D Kissinger for American Surety Co.

OPINION

BLAND, J.

This is an action on a bond executed by the defendant, Ancona Realty Company, as principal and the defendant, American Surety Company, as surety, in favor of the Merchants Savings & Loan Association (hereinafter referred to as the plaintiff). Plaintiff was the beneficiary in a deed of trust upon real estate in Kansas City and purchased the property at the foreclosure sale made by the trustee. The bond was in the penal sum of $ 2000 and was given under the provisions of sections 3063 and 3064, Revised Statutes 1929, for the purpose of securing the redemption of the real estate. The proceeding in which the bond was given was entitled: "In the Matter of Application of Ancona Realty Company, a corporation, for the approval of security for the redemption of real estate from the sale thereof by William B. Dickinson, Trustee, on May 2, 1929." The cause was numbered 295478. The real estate was not redeemed and this proceeding was brought on the bond against the principal and the surety thereon (hereinafter referred to as the defendants). Our statute concerning suits upon bonds of this character does not provide for the assessment of damages in the proceeding in which the bond is given (see article 2 of chapter 15, R. S. 1929) but, nevertheless, plaintiff commenced this proceeding, not by a separate suit, as it should have been had the plaintiff proceeded in the usual and ordinary manner (see Elliott v. M. K. & T. Ry. Co., 77 Mo.App. 652, 660), but in the original proceeding, with the above title, wherein the bond for the redemption of the real estate had been approved. Four terms had elapsed after the proceedings for the redemption of the bond had terminated before this proceding was brought. No process was issued in the new proceeding and, of course, none was served upon the defendants. Notwithstanding this plaintiff claims that, by reason of the various motions and pleas filed by the defendants they entered their general appearance to the proceeding on the bond. It will, therefore, be necessary to set forth the various steps taken by the defendants in relation to the matter.

This proceeding on the bond was commenced by the filing of a petition which purports to be the ordinary petition that is filed in a regular suit upon a bond. It was started by the filing in the original proceeding by plaintiff of what was entitled: "Motion for judgment on bond." The Merchants Savings & Loan Association was described, not as plaintiff, but as "your orator." Said motion set up sundry items of damages aggregating a sum much in excess of the penal sum of the bond but asked judgment only in the sum of the bond. The motion was filed on August 20, 1930. Seven days thereafter defendants, the principal and surety on the bond, filed their separate and identical pleadings entitled: "Plea in abatement and motion to strike out." These motions recite that the defendants appeared for the purpose, only, of the motions and pleas and that they objected to the jurisdiction of the court over their persons and over the subject-matter; that said motion "for judgment on bond" was not brought in "proper form or manner as prescribed by law" and it did not state facts sufficient to constitute a cause of action; that there was a defect of parties defendant; that the American Surety Company was a nonresident and a foreign corporation and not a necessary party to the alleged action.

Thereafter, the court overruled these pleas and motions, whereupon, defendants requested time to plead, still insisting that the court had no jurisdiction and that they were not waiving that point. Thereafter, defendants filed their respective demurrers to plaintiff's motion, which were identical except for the names of the parties, and set up the same matters asserted in their pleas in abatement and motions to strike out, with the additional allegation that no judgment could be rendered against the American Surety Company until a judgment had been obtained against the Ancona Realty Company. Said demurrers contained the statement that the defendants move "the court . . . to abate, deny, overrule and strike out" plaintiff's motion. These demurrers were overruled.

Again defendants requested time to plead, which was sustained. These requests were worded similarly to the first ones above mentioned. Thereafter, defendants separately filed answers to plaintiff's motion. These answers were substantially identical. Each insisted and recited that the defendants were appearing, only, for the purpose of their answer and set up all of the matters theretofore raised by the pleas in abatement and the demurrers. They also denied each and every allegation contained in plaintiff's motion except the incorporation of the defendants.

Thereafter, plaintiff filed an amended motion and petition for a judgment on the bond in which plaintiff was described as "Your orator and plaintiff" and the principal and surety on the bond were described for the first time as defendants. Said amended motion and petition was substantially the same as plaintiff's original motion for a judgment on the bond, with the addition of a verification. However, the amended motion and petition for judgment on the bond, in addition to being styled as the proceedings theretofore had been entitled, also, styled the same as "Merchants Savings & Loan Association of Kansas City, Missouri, a corporation, Plaintiff, v. Ancona Realty Company, a corporation, and American Surety Company of New York, a corporation, Defendants.

Thereafter, defendants, separately filed pleas in abatement to said amended motion, which pleas were substantially identical with each other and with the original pleas and motions to strike out, filed to the original motion for judgment on the bond. Thereafter, these pleas in abatement were overruled. Subsequently, defendants filed their separate demurrers to plaintiff's amended motion. Said demurrers were substantially identical to each other and with the demurrers originally filed by the defendants to plaintiff's original motion. Thereafter, the court overruled these demurrers and the defendants filed their separate answers to said amended motion for judgment on the bond. Said answers were substantially identical with each other and with the answers originally filed by the defendants respectively to plaintiff's original motion.

Thereafter, the case came on for trial and the parties appeared by their respective attorneys, waived a jury and tried the case on "Plea in abatement" and "On the merits of said proceeding." The defendants offered evidence on the issue of the plea in abatement largely consisting of the original motion for judgment on the bond, the amended motion and various motions and pleadings of the defendants. The plea in abatement was overruled over defendants' objection. The cause then proceeded to trial upon the merits. The attorneys for the defendants participated. Plaintiff proved its case, including its damages, and rested. Defendants introduced evidence but separately moved for judgment "on the record and whole evidence." The court overruled this motion and rendered judgment in favor of plaintiff for the sum of $ 2000 with interest at the rate of 6% per annum from the date of the bond, or a total of $ 2097.26. After the rendition of the judgment the defendants filed separate motions for a new trial, based not only upon the rulings of the court upon their dilatory pleas and motions but also upon the merits of the cause.

Defendants insist that the court had no jurisdiction either over the subject-matter or over their persons. We will first take up the contention that there was no jurisdiction over the subject-matter. In this connection it is insisted that a proceeding upon a bond, such as this one, cannot be brought in the original proceeding in which the bond was given. It may be conceded that defendants could not have been brought into court by this method without their consent. Defendants could have properly appeared and raised and saved the question but, if their conduct was such that they must be adjudged to have entered their general appearance to the proceeding, then, they cannot now be heard to object to the method in which the cause was instituted. It is not disputed that the court had jurisdiction of this class of actions, the complaint being merely that it could not be brought by filing a pleading in the dead action wherein the bond was given. It appears that the only difference between this proceeding on the bond and a suit brought thereon in the conventional way, is that it was brought in a dead case instead of by filing a new suit. In other words, instead of the new proceeding bearing a new number it bore that of the old one. However, this was not such a violation of the orderly method of instituting causes of action as to make the proceedings void if defendants, in legal effect, consented to it. [State ex rel. Ponath v. Muench, 230 Mo. 236, 130 S.W. 282; Smith v. Kiene, 231 Mo. 215, 132 S.W. 1052.] The case of State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25, cited by the defendants is distinguished in the Ponath case.

We have examined the case of Fulton v. Fisher, 239 Mo. 116 143 S.W. 438, cited by defendants and find it not in point. In that case there were a number of defendants brought into court by the plaintiff. One of them filed a...