Reynolds v. Justice

• Decision Date: 06 November 1933
• Parties: IN RE APPLICATION OF REX L. REYNOLDS AND WIFE TO REDEEM REAL ESTATE, APPELLANTS, v. WILLIAM J. JUSTICE, RESPONDENT
• Court: Kansas Court of Appeals

66 S.W.2d 169

228 Mo.App. 246

IN RE APPLICATION OF REX L. REYNOLDS AND WIFE TO REDEEM REAL ESTATE, APPELLANTS, v. WILLIAM J. JUSTICE, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 6, 1933

Appeal from Circuit Court of Jackson County.--Hon. James R. Page Judge.

APPEAL DISMISSED.

Appeal dismissed.

R. C Southall for appellants.

Borders Borders & Warrick for respondents.

OPINION

SHAIN P. J.

The appellants herein were, on February 28, 1932, the owners of Lot 9 of Block 12, Armour Hills, a subdivision of Kansas City, Missouri. The above real estate was subject to a first mortgage of $ 7,500 and a second mortgage of $ 1,000.

The second mortgage was foreclosed on February 28, 1933, and William J. Justice, respondent herein, became the purchaser. There is no claim as to irregularity of foreclosure proceedings and it is admitted that respondent was and is a representative of the holder of the mortgage debt.

The appellants proceeding under and by virtue of the provisions of Sections 3063 and 3064, Revised Statutes 1929, did in due time, in due form and with due notice file intention to redeem. In due time, appellants filed a redemption bond with I. L. and P. J. Holzman as securities. On March 7, 1933, and in due time, matter of approval of the bond was taken up and the following proceedings were had and entered of record:

"Now on this day petitioners file bond to redeem real estate in the sum of $ 1,000 with Rex L. Reynolds and Myrtle Reynolds as principals and I. L. Holzman and P. J. Holzman as sureties thereon, which said bond is by the court temporarily approved."

It appears that on March 20, 1933, appellants filed a new bond with Roy H. Gould as security. No action seems to have been taken on this bond. Prior to March 27, 1933, appellants file another bond with J. W. Cox as security. On March 27, 1933, the following proceedings were had and entered of record:

"Now on this day, petitioners' application to redeem real estate is by the court denied, and bonds to redeem real estate heretofore filed herein are by the court disapproved, and cause is by the court dismissed at petitioners' cost, for which execution shall issue. To which order and ruling of the court petitioners excepted and still excepts."

On March 31, 1933, appellants filed a motion for rehearing and the following proceedings were had and entered of record:

"Now on this day petitioners' motion for rehearing on redemption bond is by the court overruled. To which ruling of the court petitioners except. "

On April 1, 1933, appellants filed an application and affidavit for appeal, same being in words and figures as follows:

"APPLICATION FOR APPEAL

"Come now the above-named petitioners and pray that they be granted an appeal to the Kansas City Court of Appeals from the following rulings and orders of the court:

"1. Disapproving the bond signed by Roy H. Gould as surety.

"2. Disapproving the bond signed by J. W. Cox as surety.

"3. Dismissing this cause and the bond approved by Hon. Allen C. Southern when there was no motion before the court to dismiss either bond or cause.

"4. Overruling motions for rehearing on the above three orders and rulings.

"R. C. SOUTHALL,

"Attorney for Petitioners."

"Affidavit For Appeal

"R. C. Southall, being duly sworn, makes oath and says that he is the attorney for the above-named petitioners and that the appeal prayed for in the above-entitled cause is not made for vexation or delay, but because the affiant believes that the appellants are aggrieved by the judgment and decision of the court.

"R. C. SOUTHALL.

"Subscribed and sworn to before me this 31st day of March, 1933.

"LYNN G. BUFORD,

"Clerk of the Circuit Court.

"(L. S.) "By J. R. STRODE,

"Deputy."

On the following day the following proceedings were had and entered of record:

"And now petitioner's petition for appeal is by the court denied."

Thereafter, under the provisions of Section 1023, Revised Statutes 1929, appellants made application to one of the judges of the Kansas City Court of Appeals for an appeal, which was granted to this court by said judge on April 11, 1933.

On April 24, 1933, respondent filed in this court a motion to vacate and set aside the order of this court in allowing appeal. The respondent in his motion presents several grounds for his motion. The first ground presents the contention that no appeal lies from the action of refusing to approve a bond presented in an application to redeem real estate under the provisions of Sections 3063 and 3064 of Article 2, Chapter 22, Revised Statutes Missouri, 1929.

We give consideration of this question first, for the reason that if respondent's contention be right, we need not go further to determine the whole matter before this court.

To determine the matter presented, it becomes necessary to consider in connection with the above section the provisions of Section 1018 of Revised Statutes 1929, which reads as follows:

"Appeals When Granted.

"Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or in arrest of judgment, or order refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case, or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case. The Supreme Court shall summarily hear and determine all appeals from orders refusing to revoke, modify or change an interlocutory order appointing a receiver or receivers, and for that purpose shall, on motion, advance the same on its docket." [R. S. 1919, sec. 1469.]

The provisions for redemption provided for in Sections 3063 and 3064, Revised Statutes 1929, are purely statutory. No such right existed at common law, and it follows that if appeal lies it must be by virtue of section 1018, set out above.

If an appeal lies the act of approval or disapproval of a redemption bond, under provisions of sections 3063 and 3064 above, must be construed to be a judgment of a circuit court in a civil cause.

In the text of 1 Corpus Juris, at page 930, this language is found:

"The precise meaning and application of the term must sometimes be determined not by its general definition, but according to the manner in which it is used in the particular case, for a proceeding may be in a general sense civil, and yet not within the application of certain laws relating to civil actions."

The appellate courts of Missouri, so far as we have been able to find, have never passed upon the issue that is presented in this case. We are unable to find any decision in Missouri that clearly defines just what is a civil cause within the meaning of section 1018 of Revised Statutes 1929.

Proceedings under sections 3063 and 3064 of our statutes constitutes what is commonly called special proceedings, wherein no appeal lies unless expressly provided.

It follows, as before stated, that unless the action of approving or disapproving a redemption bond be construed to be a judgment of the circuit court in a civil cause, no appeal lies.

The act for redemption of real estate sold under mortgage as it stood prior to the legislative act of amendment Laws 1917, pages 209, 210 and 211, provided that in vacation the clerk of the circuit court pass upon the bond. It follows that the act as it stood before amendment made the question of approval of bond a ministerial act and it is well settled that appeal does not lie from such an act. It thus follows that the legislative intent as expressed in the original act must stand, unless there is expressed in the amendment a legislative intent to change the act of approval so as to make the same judicial instead of ministerial.

The section as amended contains this language:

"If court should not be in session when such bond and application are so filed the...