Poole v. Roloff

CourtCourt of Appeal of Missouri (US)
Citation361 S.W.2d 340
Docket NumberNo. 31036,31036
PartiesConrad C. POOLE and Rose A. Poole, Plaintiffs-Appellants, v. Robert F. ROLOFF and Marion C. Roloff, Defendants-Respondents.
Decision Date16 October 1962

Don L. Schlapprizzi, James W. Jeans, Gray & Jeans, St. Louis, for appellants.

Hale W. Brown, Kirkwood, for respondents.

BRADY, Commissioner.

The appellants, hereinafter referred to by their trial designation of plaintiffs, brought this action against the respondents, hereinafter referred to as defendants, for damages resulting from defendants' cutting and removing timber from land in plaintiffs' possession, but to which the title was in defendants. The jury returned a verdict for plaintiffs in the amount of $1,800.00 and final judgment was entered thereon. Defendants filed a motion for new trial, as did the plaintiffs, the latter limiting their motion to the issue of damages. Defendants also filed a motion '* * * To Have Verdict And Judgment Set Aside And For Entry of Judgment Notwithstanding the Verdict of the Jury.' See Civil Rule 81.01 V.A.M.R. The trial court overruled both motions for new trial and sustained the defendants' motion to have the verdict and judgment set aside and for entry of judgment in defendants' favor on certain specified grounds. However, the trial court did not enter judgment for defendants. Plaintiffs appeal, as stated in their brief, from the order sustaining this motion to set aside the verdict and judgment and for entry of judgment notwithstanding the verdict of the jury, and from the order '* * * overruling their Motion for a New Trial on the issue of damages.'

While the issue is not raised by defendants, it is this court's duty, sua sponte, to determine its jurisdiction. Although there was no judgment entered for defendants, the record does show that defendants' motion which included a prayer for entry of judgment was sustained. The failure to perform the ministerial duty of formally entering the judgment for defendants does not affect its validity, State v. Haney, Mo., 277 S.W.2d 632, 55 A.L.R.2d 717. Of course, there being no judgment entered, the plaintiffs were thereby led into filing their appeal as they did, and in these circumstances the plaintiffs have clearly made a good faith attempt to properly appeal.

Because of the somewhat unusual circumstances of this case arising after the trial, a proper delineation of the issues here presented requires a disposition of the plaintiffs' first allegation of error prior to a consideration of the cause of its merits. This rather novel situation results from the fact that in sustaining the defendants' motion to have the verdict and judgment for plaintiffs set aside and judgment entered in defendants' favor, the trial court's action was taken without any notice to plaintiffs and neither were plaintiffs given any opportunity to be heard upon the matter. Such action by the trial court is assigned as error by the plaintiffs.

It should be noted that the trial court's action in this case goes far beyond that held erroneous in Albert J. Hoppe, Inc. v. St. Louis Public Service Company, Mo., 235 S.W.2d 347. In the Hoppe case, the trial court attempted to award a new trial without notice and hearing. In the instant case the trial court, without notice and hearing, actually took away a judgment, entered upon a jury verdict, and denied a new trial. The injury to the plaintiffs was accordingly much more severe than that suffered in Hoppe, supra. In any event, the application of the rule of Hoppe, supra, to the instant case becomes even more apparent when it is borne in mind that Civil Rule 81.01, V.A.M.R., abolished the motion for judgment notwithstanding the verdict and provides for the incorporation of the grounds for such motion in the Motion for New Trial. Furthermore, in compliance with Civil Rule 55.42, V.A.M.R., the circuit court of St. Louis County had promulgated Rule 13(d) of that court which provided that unless otherwise designated by the judge of the division in which trial was held, motions and other proceedings incident to the trial thereof shall be heard in the trial division on Fridays, at 9:30 A.M. The defendants do not deny the application of the Hoppe case to this factual situation, but urge that since the trial court should have sustained defendants' motion for a directed verdict the error is harmless. This court feels that contention to have merit, and we will first determine whether or not the trial court should have overruled defendants' motion for a directed verdict.

The transcript discloses that the defendants filed such a motion at the conclusion of their evidence and at the close of all the evidence. While the defendants in their contention set out above do not state which motion they are referring to, the transcript discloses that they presented evidence after their motion for a directed verdict offered at the close of plaintiffs' case was overruled. Accordingly, defendants are relegated to their motion for a directed verdict offered at the close of all the evidence, Woods v. Dalton, Mo.App., 331 S.W.2d 132. We will search the whole record to determine if the defendant was entitled to a directed verdict; that is, whether or not plaintiff made a submissible case. In determining whether a submissible case was made, and since the plaintiffs prevailed below, it requires no citation to establish our duty to view the evidence in the light most favorable to plaintiffs.

The plaintiffs entered into a contract with the defendants on December 12, 1955, for the purchase of the farm referred to in the evidence. This contract made the following provisions as to payment of the purchase price of $21,500.00: down payment of $1500.00, receipt of which was acknowledged in the contract; $100.00 per month beginning February 2, 1956 and ending with the payment of January 2, 1957; $200.00 per month beginning on February 2, 1957 and continuing through January 2, 1961; balance of purchase price and interest to be paid on January 2, 1961, at which time plaintiffs were to receive defendants' warranty deed. The plaintiffs agreed to pay interest on the purchase price from January 1, 1956 at 6%, and the monthly payments were to be applied '* * * on taxes, interest, insurance and principal.' The other pertinent parts of this contract are as follows:

'It is understood between the parties hereto that if parties of the second part should default in any of said hereinabove mentioned payments, then parties of the first part shall notify second parties of such default by registered mail, and if delinquent payments are not paid within thirty (30) days after such notice, then this agreement shall be void and parties of the first part may retain all payments theretofore made by second parties in full satisfaction for and in liquidation of all damages by them sustained, and parties of the first part shall have the right to reenter said premises and take full possession thereof.

'Parties of the first part agree to keep the buildings on said premises insured against loss by fire, lightning and tornado, and in case same are damaged by fire, lightning or tornado, parties of the second part shall have the option to use the amount received by insured for payment on sale price or toward the re-building of the damaged property.

'Parties of the second part agree to cultivate the land in a husband-like manner, to prevent erosion thereon, and to take proper care of the buildings on said premises; and parties of the second part agree not to cut or remove any timber without the writeen permission of parties of the first part.'

The contract also provided that the plaintiffs were to have '* * * possession of said premises when this agreement has been signed * * *' and the defendants were to receive the net proceeds of all crops grown on said premises when sold and were to credit the cash value thereof to plaintiffs against the principal debt.

The decisive question in this case is determined by facts that occurred beginning in July, 1958, and therefore the evidence prior to that time will be referred to only briefly. The plaintiffs' evidence was that they made all the payments called for by the contract for the year 1955; made eleven payments in 1956; eleven in 1957, and had made six payments up to July, 1958. However, Mr. Poole admitted he was $1,900.00 behind in his payments on July 1, 1958. On that day he received a registered letter from the defendants which read as follows:

'Dear Mr. and Mrs. Poole:

'Your monthly installment payments as provided in our purchase contract dated December 12, 1955, are delinquent in the amount of $1,900.00 as of July 1, 1958. I am notifying you hereby that unless all delinquent payments are brought up to date within the next thirty days from above date our agreement will be null and void.

'Yours very truly,'

Plaintiff further testified that after receiving that letter he went to see Mr. Roloff personally, and was told by Roloff that if he could make up the back payments within two years from the date of that conversation and would continue the $200.00 monthly payments '* * * then we would go ahead as was * * *'; that in reliance on that conversation plaintiffs purchased some cattle costing $1,200.00, and '* * * attempted to purchase some equipment'; that he remained in possession of the farm and resumed payments; that he paid $1,900.00 after July 1, 1958, identifying the cancelled checks therefor; and that he received from the defendants a statement, his Exhibit 15, dated December 31, 1958, showing credits for payments during 1958 after July 1st, and also showing credits to Poole of $5.43 and $151.40 from the wheat crop credited 7/10/58. On that same exhibit the plaintiffs were debited on 11/10/58 in the amount of $205.13 for taxes, and $1,154.29 for full twelve months interest. The insurance premium was also debited to him as of 4/6/58, although the exhibit does not show nor does the testimony reveal whether...

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5 cases
  • Hawkins v. Burlington Northern, Inc.
    • United States
    • United States State Supreme Court of Missouri
    • 9 Septiembre 1974
    ...landowners to recover for alleged flood loss. The gist of the action for trespass is a disturbance of possession. Poole v. Roloff, 361 S.W.2d 340 (Mo.App.1962). In Kalicak, supra, it was held that flooding damages can be recovered in trespass. Although there is no MAI for trespass, Instruct......
  • Barr v. Kamo Elec. Corp., Inc., WD
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Marzo 1983
    ...of Cape Girardeau v. Pankey, 224 S.W.2d 588 (Mo.App.1949); Mawson v. Vess Beverage Co., 173 S.W.2d 606 (Mo.App.1943); Poole v. Roloff, 361 S.W.2d 340 (Mo.App.1962); 87 C.J.S. Trespass Section 12, p. 964 et seq. Nor is plaintiffs' cause of action properly to be considered under the legal rul......
  • Koelling v. Ralph Anderson Lumber Co., 51285
    • United States
    • United States State Supreme Court of Missouri
    • 12 Julio 1965
    ...stated. Anderson and Boyd rely on Sligo Furnace Co. v. Hobart-Lee Tie Co., 153 Mo.App. 442, 446, 134 S.W. 585; Poole v. Roloff, Mo.App., 361 S.W.2d 340, 346; H. D. Williams Cooperage Co. v. United States, CCA 8th, 221 F. 234, 236; see also 34 Am.Jur. 577-579, Logs and Timber, Secs. 133-135,......
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    • Court of Appeal of Missouri (US)
    • 9 Agosto 1988
    ...as against builder at the time of the trespass. Hoelmer v. Heiskell, 359 Mo. 236, 221 S.W.2d 142, 144 (1949); Poole v. Roloff, 361 S.W.2d 340, 345 (Mo.App.1962). While we have observed that the rule in England has always been that actual possession is necessary, we have further stated that ......
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