Mitchell v. Commercial Standard Ins. Co., 38734
| Decision Date | 04 April 1978 |
| Docket Number | No. 38734,38734 |
| Citation | 565 S.W.2d 184 |
| Parties | Adele MITCHELL, Plaintiff-Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY, Defendant-Respondent. . Louis District,Division Two |
| Court | Missouri Court of Appeals |
William R. Hirsch, Clayton, for plaintiff-appellant.
Jerome M. McLaughlin, St. Louis, for defendant-respondent.
This is an appeal from an order of the circuit court granting defendant's motion to dismiss a pleading denominated "Claim for Relief of Plaintiff" 1 and dismissing plaintiff's cause of action in toto. This matter arose from a suit in equity to reform an insurance policy so as to show plaintiff as an insured mortgagee together with the Kimberly Investment Corporation. The policy provided fire coverage in the amount of $26,000 on a four family dwelling which burned. The defendant insurance company filed a third party petition alleging that it had issued the policy in question insuring Thomas and Sandra Venezia as owners and Kimberly Investment as mortgagee, naming the Venezias and Kimberly as third party defendants and accusing them of fraud and misrepresentation in the procurement of the policy. The insurance company also filed an answer and counterclaim alleging with some particularity the nature of the misrepresentations, claiming it would not have issued the policy had it known the truth, and seeking declaratory relief to the effect that it was liable to no one on the policy because of fraud in the procurement. The counterclaim was not disposed of below. The order appealed from is therefore not final, and the appeal must be dismissed as premature.
This case is inextricably entwined with one filed on the same day, in the same court, by the same plaintiff against the same defendant, occasioned by the same conflagration. Because the instant case sought reformation of the policy, it was assigned to one of the "equity" divisions of the Circuit Court of the City of St. Louis, in accordance with local custom. In the other action, plaintiff claimed she was the assignee of Kimberly Investment in the amount of $21,645.19, and prayed for judgment in that amount, plus interest, together with a ten percent penalty and attorney's fees for vexatious delay. Because it was an action for damages on the insurance policy, the case was sent to Division 1, a "law" division of the court. As in the instant case, defendant insurance company filed a third party petition against the Venezias and Kimberly Investment, alleging that it was liable to no one but that the named third party defendants were indispensable parties.
The reformation case was heard without a jury. 2 Thereafter, the trial court entered an order stating that both the petition for reformation and defendant's counterclaim were "denied". However, defendant filed a motion for new trial which the court "sustained on the ground that the judgment is against the weight of the evidence."
Some months later, the defendant insurance company filed a motion to dismiss the action at law on the grounds, inter alia, that the judgment against plaintiff in the reformation suit had not been appealed, was final and res judicata as to that case. The motion was sustained and the petition " . . . dismissed without prejudice and with leave to re-file this cause upon termination of the Defendant's Counterclaim for Declaratory Judgment in Cause Number 26586F against this Plaintiff now pending in Division Two (2) of this Court." On the same day defendant filed its motion to dismiss the action at law, it filed a "motion for judgment" on its counterclaim for a declaratory judgment in the reformation case, in effect submitting it on the evidence previously adduced. Although the motion was denied, the new trial never took place...
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...reverse and remand only that portion of the trial court's action which dismissed his motion to modify. Mitchell v. Commercial Standard Insurance Co., 565 S.W.2d 184, 186 (Mo.App.1978); Hamiltonian Federal Savings & Loan v. Reliance Insurance Co., 527 S.W.2d 440, 444 On April 8, 1977, the Ci......
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...for the requirement of finality is jurisdictional. Marsch v. Williams, 575 S.W.2d 897 (Mo.App.1978); Mitchell v. Commercial Standard Insurance Co., 565 S.W.2d 184 (Mo.App.1978). Respondents' motion sought an order setting aside the jury verdict and for alternative relief, either for judgmen......
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Gillman v. Mercantile Trust Co., s. 42440
...must first consider the question of our jurisdiction although it has not been addressed by the parties. See Mitchell v. Commercial Standard Ins. Co., 565 S.W.2d 184 (Mo.App.1978). Plaintiff's seven count petition was filed in St. Louis County against Mercantile Trust Company National Associ......
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Mitchell v. Commercial Standard Ins. Co.
...REINHARD and SNYDER, JJ., concur. 1 Reference is hereby made to plaintiff's first appeal attempt. See Mitchell v. Commercial Standard Insurance Co., 565 S.W.2d 184 (Mo.App. 1978). The defect noted therein, concerning the pendency of defendant's counterclaim, has been cured by virtue of a ci......