Mills v. Thimmig

• Decision Date: 08 February 1921
• Docket Number: No. 16466.,16466.
• Citation: 227 S.W. 616
• Parties: MILLS v. THIMMIG.
• Court: Missouri Court of Appeals

227 S.W. 616

MILLS v. THIMMIG.

No. 16466.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Action by Roy J. Mills against Charles H. Thimmig. Judgment for plaintiff and defendant appeals. Affirmed.

H. W. Femme; of St. Louis, for appellant. Case & Miller, of St. Louis, for respondent.

BIGGS, C.

On December 28, 1916, plaintiff obtained judgment in a justice of the peace court against defendant. Upon appeal to the circuit court and after a trial de novo, plaintiff likewise had judgment. On the latter judgment an execution was issued at the instance of plaintiff, and thereupon defendant filed a motion to quash and recall the execution, solely on the alleged ground that the judgment obtained in the circuit court was null and void, for the reason that the statement filed in the justice court, and which formed the basis of the judgment in the circuit court, failed to state a cause of action against the defendant. The motion to quash having been overruled, defendant appeals.

While counsel have argued and briefed other questions arising out of the trial of the cause in both the justice and the circuit court, such questions are not before us for review, as this is an appeal from an order overruling a motion to quash an execution, which motion challenges the judgment for one cause only, namely, that the judgment is null and void because of an insufficient statement filed in the justice court.

The statement of the cause of action was in three counts. The first count is as follows:

"Plaintiff states that on and prior to the 8th day of May, 1916, there was pending in the circuit court of the city of St. Louis, case No. 93006, wherein the Great Western Construction Company, a corporation was plaintiff, and Floyd Realty & Investment Company, a corporation et al., were defendants; that during the pendency of said case in the circuit court, plaintiff rendered services in connection with the proceedings in said case of the reasonable value of $88.10, which were taxed as costs in said suit, no part of which has been paid.

"Plaintiff further says that the defendant, on or about the 8th day of May, 1916, entered into a contract, in writing, in the body of which he describes himself as trustee and party of the first part, and in which Rudolph G. H. Linke and Hortense Linke are described as parties of the second part, and which contract was signed by the defendant as party of the first part in person, without designating himself as trustee; that said contract, among other things, provided that the defendant was willing to make a loan of $2,500 on certain property belonging to the parties of the second part to said contract, and which loan he did actually make; that said agreement further provided that the proceeds of said loan of $2,500 were to be used by defendant to satisfy all claims against said property for labor and material used in the erection of said buildings, and all costs of court attached to said liens and claims, and that said defendant further agreed as party of the first part to satisfy all mechanics' liens and costs of court now held against said property.

"Plaintiff further says that said agreement further provided that the party of the second part thereto would execute a principal note for $2,500, and...