Pine Lawn Bank & Trust Co. v. City of Pine Lawn

• Decision Date: 09 January 1956
• Docket Number: No. 44760,No. 2,44760,2
• Citation: 365 Mo. 666,285 S.W.2d 679
• Parties: PINE LAWN BANK & TRUST COMPANY, a Corporation, Plaintiff-Appellant, v. CITY OF PINE LAWN, a Municipal Corporation, Defendant, Gilbert Auty and Anna Ferne Auty, Intervenors-Respondents
• Court: Missouri Supreme Court

Page 679

285 S.W.2d 679

365 Mo. 666

PINE LAWN BANK & TRUST COMPANY, a Corporation, Plaintiff-Appellant, v. CITY OF PINE LAWN, a Municipal Corporation, Defendant Gilbert Auty and Anna Ferne Auty, Intervenors-Respondents.

No. 44760.

Supreme Court of Missouri, Division No. 2.

Jan. 9, 1956.

Gerwitz & Seegers, G. L. Seegers, St. Louis, for appellant.

Lester Watson, and Wm J. Hough, Clayton, for respondents.

STORCKMAN, Judge.

In this action, begun as a declaratory judgment suit, the filing of an intervening petition was allowed. The object of the intervening petition was to cancel a note and deed of trust held by the plaintiff and to enjoin foreclosure. After a hearing on an order to show cause, a temporary injunction was issued. On final hearing of the issues brought into the case by the intervening petition the note and deed of trust were cancelled and a permanent injunction was issued. From such order and judgment this appeal was taken. The issues between the parties to the original action have no been heard or determined and are not involved on this appeal.

An outline of the various pleadings filed and proceedings had in the trial court is necessary to a proper understanding of the questions involved. The plaintiff, Pine Lawn Bank & Trust Company, a banking corporation, on April 9, 1954, filed a declaratory judgment action against the defendant, City of Pine Lawn, a municipal corporation of the fourth class. In its petition the plaintiff alleged that the defendant city had asserted a claim of liability against it and had demanded to be reimbursed for a deficiency of $34,642.70 in city funds on deposit with the defendant bank caused by the wrongful and unauthorized acts of the city clerk, Gilbert Auty. The plaintiff bank tendered with its petition and deposited with the clerk of the circuit court two cashier's checks aggregating the amount of the demand, and prayed for an adjudication of the rights and liabilities of the plaintiff and defendant and the payment out of the checks on deposit of any amount found to be due from the plaintiff to the defendant. The defendant, on April 14, 1954, answered requesting the adjudication of the rights of the parties and the payment to the defendant of the two checks which plaintiff had deposited. Shortly thereafter, on April 21, Gilbert Auty and Anna Ferne Auty, his wife, were allowed to intervene in the action. Their intervening petition sought the cancellation of a note and deed of trust for $14,848.65, and an injunction against the plaintiff and the trustee in the deed of trust from foreclosing it. Neither the plaintiff nor the defendant were served with a motion to intervene as provided in Section 507.090 RSMo 1949, V.A.M.S. The parties were served with an order to show cause on May 6, 1954, why a temporary injunction should not be issued.

On May 5 the defendant city filed its amended answer and cross bill against the plaintiff in which it denied for the first time that the plaintiff bank had made an unrestricted tender of the sum of $34,642.70. This new pleading further set up a cross bill against plaintiff alleging that on November 23, 1953, the defendant city demanded of plaintiff bank the sum of $34,642.70 which represented cash paid by the plaintiff bank to Gilbert Auty in exchange for checks made to the defendant city and restrictively endorsed for deposit only in plaintiff bank for the credit of the defendant city and further represented money given by plaintiff bank to the said Gilbert Auty in exchange for checks bearing improper and unauthorized endorsements. The pleading further alleged that the said Gilbert Auty had no authority of any kind whatsoever to receive withdrawals from said bank account of defendant city or to receive the proceeds of checks restrictively endorsed for deposit to the account of the defendant city in the plaintiff bank. The prayer of this so-called cross bill was for $34,642.70, with interest at six per cent from November 23, 1953, the date of demand.

On May 6 plaintiff bank filed its return to the order to show cause. In addition to factual denials and allegations, the plaintiff objected to the filing of the intervening petition and requested that it be stricken. In this state of the record the hearing on the order to show cause was held on May 6, which hearing resulted in the granting of a temporary injunction upon the intervenors' posting a bond for $1,500.

Thereafter, on May 14, the plaintiff bank filed an answer to the intervening petition which, in brief, consisted of further denials and allegations with respect to the facts in issue, and further objection to the standing of intervenors as proper parties in the case. The prayer of the answer was for dismissal of the intervenors' petition. On the same day the plaintiff bank filed its separate cross claim against Gilbert Auty which alleged that if judgment was rendered against the plaintiff bank and in favor of the defendant city, the bank would be entitled to have judgment over against Gilbert Auty for the amount of any such judgment. This cross claim was directed at Gilbert Auty alone and did not refer to or ask any relief against the intervenor Anna Ferne Auty. Thereafter, on June 23, the intervenors filed an answer to the plaintiff's cross claim, which denied generally the allegations of such cross claim against Gilbert Auty. On the same day the plaintiff bank filed a motion to dismiss the defendant city's amended counterclaim and for judgment in favor of the bank against the defendant city.

The final hearing on the intervening petition and responsive pleadings thereto was held on June 23, 1954, and the matter was taken under advisement by the court. On November 1, 1954, the court rendered its decree finding that Anna Ferne Auty had executed the note and deed of trust as a result of duress and ordered the said instruments cancelled as to her, and further enjoined the plaintiff and plaintiff's trustee, Douglas W. Dodds, from foreclosing said deed of trust. The decree further recited that the court, having heard no testimony from the intervenor Gilbert Auty, found against him and dismissed his intervening petition. Plaintiff's motion for judgment or, in the alternative, for a new trial was directed against the judgment entered in favor of the intervenor Anna Ferne Auty. In connection with the overruling of the motion, on December 29, the court filed a memorandum which, among other things, stated that the court believed that the intervention was proper because 'The subject matter of intervenors' petition involves the same money tendered as settlement in this cause by plaintiff to defendant, or part of the same, as that involving the deed of trust which intervenors sought to have cancelled.' On December 30 defendant city filed in the cause its second amended answer to plaintiff's petition, which alleged that only the city treasurer had authority to withdraw the funds from the city's accounts at the plaintiff bank and further amplified and extended the factual allegations. The relief requested, however, was the same, the recovery of $34,642.70 together with interest thereon from November 23, 1953, at the rate of six per cent, and for its costs. In due course this appeal was taken 'from the judgment in favor of intervenor, Anna Ferne Auty, and against this plaintiff.'

It will not be necessary to review in detail the testimony of the witnesses at the trial on the merits. It is sufficient for the present to say that the evidence adduced by the intervenors tended to show that plaintiff's representative went to the Auty home at about noontime on August 24, 1953, and made representations to Mr. and Mrs. Auty that Mr. Auty was short in his accounts with the city and that a report of such fact was to be made to the city council that night; that Mr. Auty was likely to be prosecuted and it would be helpful if the Autys signed a note for $14,848.65 and a deed of trust securing the same on the residence property of the Autys which then stood in the name of Mrs. Auty, having been transferred to her name alone from Mr. and Mrs. Auty as tenants by the entirety on about March 18, 1953. Intervenors' evidence further tended to show that Mrs. Auty had requested that the matter be deferred until the next day in order that she could interview an attorney, and that such request was denied by plaintiff's representative. The plaintiff bank adduced evidence denying the use of duress. Gilbert Auty did not take the stand at all but Mrs. Auty testified at both trials. On this conflicting evidence the trial court found the issues in favor of the intervenor, Anna Ferne Auty, and against the plaintiff. As heretofore stated, the intervening petition of Gilbert Auty was dismissed.

The defendant City of Pine Lawn has treated the intervention as a contest solely between the plaintiff bank and the Autys. It did not file any return to the order to show cause or answer to the intervenors' petition. The city took little or no part in the trial of the issues and did not appeal. It has filed no brief on appeal.

Appellant bank contends that the trial court erred in the following particulars: Because the intervenors' petition and application failed to state facts entitling them to the relief prayed for in that the pleading contained merely conclusions. Because intervention was permitted contrary to the statute in that the court acquired no jurisdiction over the parties and because there was no question of law or fact common to the cause on intervention and the main cause, and the intervention injected an independent controversy into the original case. Because Douglas W. Dodds, trustee in the deed of trust, an indispensable party to the intervening cause of action, was not made a party to the action. Because the judgment did not dispose of the entire controversy in that the note, deed of trust and other documents were cancelled as to Anna Ferne Auty only. Because the evidence was insufficient to...