Nickels v. Witschner
| Citation | 270 S.W.2d 848 |
| Decision Date | 12 July 1954 |
| Docket Number | No. 44005,No. 2,44005,2 |
| Parties | NICKELS et al. v. WITSCHNER et al |
| Court | Missouri Supreme Court |
E. Robert Klein, Kansas City, for appellants.
Ira K. Witschner, Charles V. Garnett, Kansas City, for respondents.
WESTHUES, Commissioner.
Plaintiffs Edward C. Nickels and Kathryn M. Nickels (sometimes spelled 'Nickles' in the record) filed this suit to set aside a trustee's deed whereby title to real estate was conveyed to defendant Great Western Homes Building Corporation. Plaintiffs also asked that a note and deed of trust be cancelled under the provisions of which the property was sold by the trustee named therein. Plaintiffs alleged they did not execute the note and deed of trust. The defendant Building Corporation filed an answer claiming ownership of the property by virtue of the trustee's deed. Defendant Ira Keith Witschner asserted in his answer that he purchased the note and deed of trust for a valuable consideration and that plaintiffs defaulted in payments due and that the deed of trust was foreclosed. Defendant Joseph A. Harrington alleged in his answer that he was the notary public before whom the deed of trust was acknowledged and that plaintiffs executed and acknowledged the deed of trust and note. Defendant Jerome K. Davidson answered admitting that he was the trustee named in the deed of trust and that he made the deed in question as trustee. Bernard W. Gnefkow, named as a defendant, was alleged to have been a magistrate judge before whom an unlawful detainer suit was pending for the possession of the property when the petition in this case was filed. The trial court at plaintiffs' request entered a restraining order staying the proceedings in the magistrate court pending the outcome of this suit. The record shows that when the present case was called for trial, plaintiffs failed to appear. Defendants were present in court. The court entered a judgment and decree for the defendants. The court found plaintiffs had been notified of the setting of the case but failed to appear and were adjudged in dafault. The court entered a decree vesting title in defendant Great Western Homes Building Corporation as prayed for in its answer. Plaintiffs filed a motion for new trial which was overruled; whereupon they appealed to this court.
Plaintiffs briefed three points seeking a reversal of the trial court's decree. In the first, plaintiffs assert that the court erred in refusing to continue the case pending a settlement agreed upon by the parties. In the second point briefed, plaintiffs say the trial court erred in entering a decree without any evidence before it. In the third point, it is urged that the judgment should be reversed because the defendant Great Western Homes Building Corporation did not produce any evidence that it paid any consideration for the property at the...
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