Robinson v. Field, 35168.

CourtUnited States State Supreme Court of Missouri
Citation117 S.W.2d 308
Docket NumberNo. 35168.,35168.
Decision Date26 May 1938
117 S.W.2d 308
No. 35168.
Supreme Court of Missouri.
Division One, May 26, 1938.*

[117 S.W.2d 310]

Appeal from Clinton Circuit Court.Hon. Richard B. Bridgeman, Judge.


W.H.H. Piatt and Edgar J. Keating for appellants.

(1) The original petition is not amendable and defendants' motions to strike and dismiss the first amended petition must now be sustained. Sec. 764, R.S. 1929; Sebastian County Coal & Min. Co. v. Fidelity Fuel Co., 310 Mo. 158, 274 S.W. 774; Bank v. Tiger Tail Min. Co., 152 Mo. 156; Pier v. Heinrichoffer, 52 Mo. 336; 31 Cyc., p. 391, sec. 8; Rice v. McClure, 74 Mo. App. 379; Davis v. Clark, 40 Mo. App. 515; Galloway v. Vincent, 143 Mo. App. 434, 128 S.W. 1009; Yates v. Burk, 161 Mo. App. 267, 143 S.W. 73; Johnson v. Bank of Poplar Bluff, 221 Mo. 127, 294 S.W. 114. (2) Only actions affecting title to real estate or for possession may be instituted and thereafter maintained in the county in which none of the parties reside. Defendants' motions to strike and dismiss for departure the first amended petition must now be sustained. Defendants' pleas in abatement to the first amended petition must now be sustained. Sec. 720, R.S. 1929; State ex rel. Maxwell Inv. Co. v. Huck, 240 S.W. 236; Vandeventer v. Florida Savs. Bank, 135 S.W. 23; Nettleton Bank v. McGauhey's Estate, 2 S.W. (2d) 775; Williams v. Mackey, 52 S.W. (2d) 831. (3) The order of the Clinton County Circuit Court enjoining defendants from prosecuting their equity suit in Jackson County Circuit Court for an accounting, to foreclose a pledge on securities and to fix their fees and charges for their services is a nullity and not within the jurisdiction of the court, is outside the issues legally before the court and must now be dissolved and for naught held. State ex rel. Robinson v. Wright, 85 S.W. (2d) 561; Sec. 1501, R.S. 1929; State ex rel. Fenn v. Riley, 127 Mo. App. 469, 105 S.W. 696; Terry v. Hague, 251 S.W. 79; Lenox v. Vandalia Coal Co., 158 Mo. 492; Arpe v. Meeker Brothers Iron Co., 19 S.W. (2d) 670; Ross v. Mineral Land Co., 162 Mo. 317, 62 S.W. 984; Heman v. Glann, 129 Mo. 325, 31 S.W. 589; Lumpkin v. Collier, 69 Mo. 170; Scoville v. Glasner, 79 Mo. 449; Wasson v. Boland, 136 Mo. App. 629, 118 S.W. 663; Douglas Candy Co. v. Shenk, 195 Mo. App. 597, 194 S.W. 754; 37 C.J. 1068, sec. 507; Benson, Code Pleading (2 Ed.) 1144; Bank v. Produce Co., 58 S.W. (2d) 742; R.S. 1929, secs. 819, 828. (4) Defendants' motion for judgment on the pleadings and objection to the introduction of evidence at the opening of the trial must be now sustained. Sec. 780, R.S. 1929; Cordner v. Roberts, 58 Mo. App. 440. (5) Defendants' motions to strike and dismiss for departure the second amended petition must be now sustained. (6) The refusal to allow defendants a term bill of exceptions on their motion to strike second amended petition and their motions for rehearing thereof was and is an abuse of judicial power and authority and a denial to the defendants of their rights under the statutes. R.S. 1929, secs. 1008-1011. (7) The judgment and pleadings are not within the issues by which the action is made by the petition with which the suit is instituted, is without evidence to support it and is coram non judice, and the motion for new trial and motion in arrest must be sustained. 13 C.J., p. 1235; Burns v. Ames Realty Co., 31 S.W. 274; Heckler v. Bleish, 3 S.W. (2d) 1008; Ross v. Ross, 81 Mo. 84; Roden v. Helm, 192 Mo. 71, 90 S.W. 798; Harris v. Railroad Co., 37 Mo. 308; Newham v. Kenton, 79 Mo. 382; Springfield Engine & Thresher Co. v. Donovan, 147 Mo. 622, 49 S.W. 500; Barber Asphalt Paving Co. v. Field, 134 Mo. App. 663, 111 S.W. 907; Ryan v. Crowney, 125 Mo. 474, 28 S.W. 755; Showles v. Freeman, 81 Mo. 540; Roden v. Helm, 192 Mo. 71, 90 S.W. 798; 15 R.C.L. 43; Charles v. White, 214 Mo. 187, 112 S.W. 545; Evans v. Gibson, 29 Mo. 223; Reynolds v. Stockton, 140 U.S. 254; Hope v. Blair, 105 Mo. 93, 16 S.W. 595; Stark v. Kirchgraber, 186 Mo. 633, 85 S.W. 868; State v. Brown, 31 S.W. (2d) 217; Schneider v. Patton, 75 S.W. 155, 175 Mo. 684; Howard v. Scott, 225 Mo. 685, 125 S.W. 1158; State ex rel. Bush v. Sturgis, 281 Mo. 598, 221 S.W. 91; Thomas v. Gann, 170 Mo. App. 81, 156 S.W. 74; Owens v. McCleary, 273 S.W. 145; Raines v. Moulder, 90 S.W. (2d) 81; Davis v. Johnson, 58 S.W. (2d) 746; Gatewood v. Trimble, 62 S.W. (2d) 756; Citizens Sec. Bank of Engelwood v. Tatewood, 36 S.W. (2d) 426; Milner v. Shipley, 94 Mo. 109; Leavenworth Term. Ry. & Bridge Co. v. Atchison, 37 S.W. 913; Palmer v. Marshall, 24 S.W. (2d) 229.

Cross & Cross, Hull & Clevenger and Harry A. Hall for respondent.

(1) The court properly allowed the amendment of the original petition, and by answering over, filing counterclaim and going to trial defendants waived a departure, if any. Nudelman v. Thimbles, 40 S.W. (2d) 475; Denny v. Guyton, 40 S.W. (2d) 562. (a) A petition which fails to state a cause of action may be amended. Lee v. St. Louis Pub. Serv. Co., 88 S.W. (2d) 337. (2) This being an equitable action, the trial court having jurisdiction of the real estate, and the parties, could dispose of the entire controversy in the one suit. Morris v. Hanssen, 78 S.W. (2d) 87; Mastin v. Jones, 228 S.W. 1051; Curtis v. Moore, 63 S.W. 80. (a) The venue is properly in Clinton County, where the land is situated. R.S. 1929, sec. 722; Williams v. Markey, 52 S.W. (2d) 831. (b) This action seeking to set aside a deed is equitable in its nature and is in personam. Castleman v. Castleman, 83 S.W. 757. (3) Plaintiff's second amended petition alleged the same cause of action, and was not a departure. Spurlock v. Mo. Pac., 16 S.W. 834, 104 Mo. 658; Bick v. Vaughn, 120 S.W. 618; McQuire v. Wilson, 187 S.W. 612; Ingwerson v. C. & A. Ry., 130 S.W. 411. (4) The burden was on the defendants to establish the validity of the deeds, which are held to be prima facie fraudulent as against an attorney receiving property from his client. Bybee v. S'Renco, 291 S.W. 458; Barrett v. Ball, 73 S.W. 865, 101 Mo. App. 288. (a) Parol evidence was admissible to show the real consideration for the deeds. Johnson v. Bank of Poplar Bluff, 294 S.W. 111; Morris v. Hanssen, 78 S.W. (2d) 87. (b) The court had jurisdiction to order the reconveyance of the Platte County land by the defendants. Hanssen v. Duval, 62 S.W. (2d) 732. (5) A court of equity can protect its jurisdiction by restraining subsequent actions by the parties. Gabbert v. Lucas, 246 S.W. 208; State ex rel. St. Charles Bank v. Hall, 12 S.W. (2d) 91; Berg v. Fidelity & Cas. Co., 274 Fed. 311. (6) The Circuit Court of Clinton County had the prior and exclusive jurisdiction of this action. Julian v. Commercial Assur. Co., 279 S.W. 740; State ex rel. v. Sullivan, 107 S.W. 487; State ex rel. v. Davis, 190 S.W. 964.


This case, recently reassigned to the writer, was commenced as an action to have a deed (conveying farm land in Clinton County) "declared void" because it "was without consideration." (As stated in paragraph "F" of plaintiff's amended petition.) After an amended and second amended petition (which defendants claim were departures), the court entered a decree ordering defendants "to execute and deliver a proper conveyance of said lands to the plaintiff;" and also granting other relief. Defendants have appealed from this decree.

Plaintiff's first petition was filed in Clinton County in June, 1933. A similar petition involving other farm land was also filed in Platte County at the same time. At the September Term, 1933, defendants filed an answer, which was a general denial, and a motion for judgment on the pleadings. This motion was never ruled by the court, but in December, 1934, plaintiff filed an amended petition. In the meantime, defendants had filed suit in equity against plaintiff (August, 1933) in Jackson County seeking to establish defendants' claim for attorneys' fees due them from plaintiff, alleged to be reasonably worth $35,000. In their Jackson County petition, defendants alleged that the Clinton and Platte County farms were conveyed to them in consideration of the sum of $8000 in attorneys' fees due them from plaintiff; and they offered to reconvey these farms for $8000 and interest less income received. Defendants by this suit also sought to impound certain assets of plaintiff held by the City Bank & Trust Company of Kansas City as security for a loan it had made to plaintiff, to have a receiver appointed to take charge of these assets and other property of plaintiff, to have defendants' fees declared a lien thereon, and to have the proceeds derived therefrom applied to the payment of defendants' fees.

The material parts of plaintiff's amended petition filed in December, 1934, were as follows:

(A) "Plaintiff states he employed defendants upon the terms (that he, defendant Field, would leave the matter of compensation entirely up to the plaintiff at whatever sum plaintiff might be willing to pay) and pursuant to said agreement the defendants represented the plaintiff as his attorneys, and as such counseled and advised him in regard to his business and legal matters, and that they continued to act as his attorneys from said date until after May 11, 1931.

(B) "Plaintiff states that during said time defendants grossly misrepresented to plaintiff that the litigation and claims in which they were representing him would lead to almost certain arrest and conviction under serious criminal charges and servitude in the penitentiary, in addition to judgments in large sums, which would completely deprive him of all his real estate and personal property, together with the loss of his right to practice as a physician.

(C) "Defendants also advised him that he should convey his real estate to them so that they would be in a position to make cost, appeal, and other bonds, in the threatened and pending litigation. Defendants also advised plaintiff...

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