Randolph v. Simpson, 26519
| Decision Date | 01 October 1973 |
| Docket Number | No. 26519,26519 |
| Citation | 500 S.W.2d 289 |
| Parties | Gertrude RANDOLPH, Plaintiff-Respondent, v. Noel J. SIMPSON and Bobbie D. Simpson, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Snowden, Crain & DeCuyper, Stephen V. Crain, North Kansas City, for defendants-appellants.
John R. Moore, Platte City, for plaintiff-respondent.
Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.
Plaintiff filed suit in two counts. The first count sought attorney's fee and a deficiency judgment on a note resulting after a trustee sale under a second deed of trust securing the note. The second count sought damages for waste committed by the makers of the note and second deed of trust while in possession of the real property described in the second deed of trust.
The case was tried to the court without a jury. Judgment was entered on December 22, 1971, in favor of plaintiff and against defendants, jointly and severally, for attorney's fee, the amount of the deficiency on the note and damages for waste.
Defendants raise two heterogeneous points on appeal. One, defendant did not waive trial by jury, therefore the trial court erred in trying the case without a jury. Two, judgment for both deficiency on the note and damages for waste awarded plaintiff 'double damages'.
In order to resolve point one it becomes necessary to focus attention on certain controlling constitutional provisions, statutes and legal principles, to segregate the applicable facts, and to render final disposition on the basis of conclusions compelled by analyzing the aplicable facts in light of the controlling constitutional provisions, statutes and legal principles.
Article I, Section 22(a), Constitution of Missouri, V.A.M.S. solemnly guarantees 'the right of trial by jury as heretofore enjoyed shall remain inviolate.' To the rank and file of the citizens of this state, few, if any, constitutional guarantees invoke the degree of personal identification and impassioned support as does the right of trial by jury. Nevertheless, since the right of trial by jury in a civil action is a personal right, it may be waived. Meadowbrook Country Club v. Davis, 421 S.W.2d 769 (Mo.1967), and cases therein cited. However, the right to be tried by one's peers has so imbued our legal system with public trust and confidence because of its inherent ability to do justice, that courts and legislative bodies alike have ever been averse to use waiver as a vehicle to dissipate the right. Section 510.190, subd. 2, RSMo 1969, V.A.M.S. is indicative of the aversion of this state's legislative body to dissipate the right of trial by jury by the use of waiver as a vehicle, by prescribing, with specificity, only four methods by which a party 'shall be deemed to have waived trial by jury', same being, '(1) By failing to appear at the trial; (2) By filing with the clerk written consent in person or by attorney; (3) By oral consent in court, entered on the minutes; (4) By entering into trial before the court without objection.' Meadowbrook Country Club v. Davis, supra, holds that Section 510.190, subd. 2, supra, and Rule 69.01(b), V.A.M.R. promulgated and adopted pursuant thereto, provide 'the exclusive manner' for waiving trial by jury, and that such can not 'be changed or enlarged except by the legislature', thus indicative of the aversion of the courts of this state to avow any right whatever to dissipate the right of trial by jury by the use of waiver as a vehicle.
Counsel for defendants, prior to December 22, 1971, on at least two occasions informally and other than in open court (the court's minutes are silent as to any oral waiver) indicated to the trial court and opposing counsel that a jury would not be required by defendants. Nevertheless, no waiver in compliance with any of the four 'exclusive' methods prescribed by Section 510.190, subd. 2, supra, in fact, occurred. Defendants appeared by counsel at the trial; no written waiver was executed or filed; and no oral waiver was made in court and entered in the minutes. Additionally, at the outset, on the morning of the trial, counsel for defendants advised the court, as a matter of record, that trial by jury was not being waived, thus precluding determination that defendants 'entered into trial before the court without objection'. This court is reluctantly constrained to find that defendants did not waive their 'inviolate' right of trial by jury. However, this court would be remiss if it failed to briefly outline certain prior events culminating in the trial court's decision to proceed with trial of the case absent a jury. Defendants' original counsel withdrew the day before the case was originally set for trial. Present counsel for defendants, who entered the case the day it was originally set for trial, requested a continuance, which was granted. Thereupon, December 8, 1971, was selected as a new trial date. On December 7, 1971,...
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Malan Realty Investors, Inc. v. Harris
...to waive a jury trial. The right to a trial by jury is constitutionally guaranteed. Mo. Const. art. I, section 22(a); Randolph v. Simpson, 500 S.W.2d 289, 290 (Mo.App.1973). It is recognized that this right "shall be preserved to the parties inviolate." Rule 69.01(a); section 510.190.1, RSM......
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In re Vantage Investments, Inc.
...courts have, however, held that the foundation of a right to sue for waste is impairment of the value of the security. Randolph v. Simpson, 500 S.W.2d 289 (Mo.App.1973); see also Restatement (Third) of Property: Mortgages, § 4.6(b)(1997). "A covenant contained in a mortgage to maintain and ......
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...this offend common sense, but any attempt by a jury to allow such a double recovery would not be permitted to stand. Randolph v. Simpson, 500 S.W.2d 289 (Mo.App.1973); Hamlin v. Flick, 226 P. 484 The majority makes much of the fact that the jury included Sambol as one of the defendants agai......
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