Roden v. Helm

• Decision Date: 12 December 1905
• Citation: 90 S.W. 798,191 Mo. 71
• Parties: RODEN v. HELM et al., Plaintiffs in Error
• Court: Missouri Supreme Court

90 S.W. 798

191 Mo. 71

RODEN v. HELM et al., Plaintiffs in Error

Supreme Court of Missouri, Division Two

December 12, 1905

Error to Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed and remanded.

George Robertson and F. R. Jesse for plaintiffs in error.

(1) The decree directing the sale of all the land and destroying Turner's title, as well as the title of the Helm infants is outside of the scope of the pleadings. Schneider v Patton, 175 Mo. 684. (2) The errors complained of, being apparent upon the face of the record, are reached by a writ of error. Bagby v. Emberson, 79 Mo. 139; Lilly v. Menke, 126 Mo. 211; McIntyre v. McIntyre, 80 Mo. 470; Ryan v. Growney, 125 Mo. 474; Railroad v. Lewright, 113 Mo. 660; Brown v. Appleman, 83 Mo.App. 79; Railroad v. Carlisle, 94 Mo. 166; State v. Murray, 126 Mo. 526; Bank v McMullen, 85 Mo.App. 142. In an action to foreclose a mortgage, all of the persons interested in the mortgaged property, must be made defendants. Sec. 4349, R. S. 1899; Wall v. May, 30 Mo. 494.

P. H. Cullen for defendant in error.

(1) No exception can be taken on an appeal or writ of error to any proceedings had in the progress of a trial in the court below which are of such a nature that they do not appear on the face of the record proper, unless they have been expressly decided by the court below; and in order that it may appear that such exceptions have been expressly decided by the court below, there should be a motion for a new trial, which should appear in the bill of exceptions, as overruled, and an exception should be taken to the decision of the court thereon. State v. Marshall, 36 Mo. 400. (2) But it is not every defect appearing in the record which can be thus taken advantage of for the first time in an appellate court; it must be a fatal error, such as where the petition absolutely fails to state a cause of action, which was the ground in most of the cases, or where the objection is to the jurisdiction of the court. Railroad v. Mahoney, 42 Mo. 467; Green v. Walker, 99 Mo. 68; In re Gardner, 41 Mo.App. 589. (3) The case was heard in the circuit court as if a replication had been filed denying the new matter in the answer, and when parties have thus tried and submitted a cause, it is too late to claim that there was no issue to try; a reply having been treated as filed in the lower court, it will be so treated in this court. Henslee v. Connefox, 49 Mo. 295; Epperson v. Tel. Co., 155 Mo. 371; Thompson v. Wooldridge, 102 Mo. 510; Howell v. Reynolds Co., 51 Mo. 156; Leabo v. Goode, 67 Mo. 126; Ins. Co. v. Harlin, 72 Mo. 202; Edmonston v. Philips, 73 Mo. 57; Chouteau v. Gibson, 76 Mo. 38; Meader v. Malcolm, 78 Mo. 550; Young v. Glasscock, 79 Mo. 574; Heath v. Goslin, 80 Mo. 310; Smith v. St. Joseph, 45 Mo. 449. (4) The petition contains every essential allegation for the foreclosure of a mortgage under the statute. It is also sufficient as a bill in equity to foreclose a mortgage; whether it is an action at law, or a bill to foreclose, must be determined by an examination of the petition itself, and the circumstances of the case. The petition asked for a judgment over against the defendants, and such a judgment was given, and for this, and other reasons, we deem it an action to foreclose a mortgage under the statute. In either view it states a cause of action. R. S. 1899, secs. 4342, 4351, 4352, 4353; Brim v. Fleming, 135 Mo. 604; Hannah v. Davis, 112 Mo. 608; Smith v. Finn, 77 Mo. 499; Kopp v. Blessing, 121 Mo. 391.

OPINION

FOX, J.

At the October term, 1903, this cause was submitted on briefs to this court for determination. My esteemed colleague, Judge Gantt, on March 23, 1904, announced the conclusions reached upon the propositions as then presented for our consideration, in which all of this division concurred. With his permission the statement of facts and legal conclusions are here reproduced. They were thus stated:

This is a writ of error from a judgment of the circuit court of Audrain county. The action was commenced November 12, 1898. The petition alleges that defendants, Thomas, Anna and Elizabeth Helm by their promissory note of date October 31, 1898, promised to pay plaintiff fourteen hundred and fifty dollars one day after the date thereof with interest thereon from date at the rate of eight per cent per annum, payable annually and if not so paid to become as principal and bear the same rate of interest; that plaintiff is now the holder and owner of said note and that the whole of said note with interest is still due plaintiff, for which he asks judgment and costs.

And for another cause of action against defendants, plaintiff says that the said defendants by their certain promissory note herewith filed, dated October 31, 1898, promised to pay to plaintiff the sum of fourteen hundred and fifty dollars one day after the date thereof with interest from date at the rate of 8 per cent per annum and if not paid annually to become as principal and bear the same rate of interest. Plaintiff says that the whole of said note and the interest thereof are yet due plaintiff, and for which he asks judgment.

"Plaintiff further says the defendant Thomas Helm some years past was possessed of a great amount of real and personal property to the value of $ 10,000; that the said Thomas Helm caused said money and property to be invested in the following described real estate in Audrain county, Missouri, towit: 160 acres the northwest quarter of section 28, township 52, range 9, and also 80 acres, being the west one-half of the northeast quarter of section 28, township 52, range 9, and also lot No. 31 in Mrs. Sparks Southern Addition to Mexico, Missouri, and caused said land to be deeded to one A. G. Turner as trustee, for the use and benefit of himself and his co-defendants herein, to-wit, Anna Helm, who is the wife of said Thomas Helm, and Elizabeth, who is the daughter of said Thomas Helm. Plaintiff says that on the 31st day of October, 1898, the defendants herein made, executed and delivered to plaintiff an instrument of writing which is hereto attached and made a part of this pleading by which they did give and grant to said Roden a lien on all the above-described property, and did by said instrument create in said Roden's favor a charge on said property for the purpose of securing the note sued on. Plaintiff therefore prays judgment against said defendants for the amount herein sued for and interest, and prays that said judgment may be declared a special lien on said property herein described, and further prays for an order on said trustee to pay said judgment out of any money or property that he may hold as trustee aforesaid and prays further that if said judgment be not paid, that the property herein described or so much of it as may be necessary may be sold to satisfy said debt, judgment, interest and costs and for such other and further relief as may be proper."

The instrument sued on is in words and figures following:

"Mexico, Mo., Oct. 31, 1898.

"Whereas, Thomas Helm has become indebted to Thomas F. Roden in the sum of fourteen hundred and fifty dollars on account of necessaries furnished said Helm, his wife and family, and whereas, said Thomas Helm and his wife Annie, and his daughter, Elizabeth, have this day executed to said Roden their promissory note for for fourteen hundred and fifty dollars due one day after date bearing 8 per cent compound interest, and whereas the said Thomas, Anna and Elizabeth Helm have an interest in certain real and personal property now held in trust for them and others by one A. G. Turner as trustee, and as security for said note we give and grant to said Thomas F. Roden a lien on said trust estate and create a charge in said Roden's favor against our interest in said trust estate for the purpose of securing said debt or note and agree that said trust estate in whatever form it now is or may be in the future shall stand as security to said Roden for said note and interest. "Thomas Helm,

"Anna S. Helm,

"Elizabeth Helm."

To this petition defendant demurred, but as the demurrer was overruled and defendants pleaded over, it is not necessary to reproduce it. Defendants filed their joint answer in words and figures as follows:

"Now comes defendants herein and for answer to plaintiff's petition deny each and every allegation set forth in both counts thereof and pray to be discharged.

"Defendants for another and further defense to plaintiff's second cause of action state that on the -- day of --, one Charles H. Rodes was duly appointed trustee of the estate of the defendant herein, Thomas Helm, and that on the 26th day of November, 1880, the said defendants, Thomas Helm, and Anna Helm, made and executed to the said Charles H. Rodes a deed to certain property situated in McLain county, Illinois, and more particularly described as the northwest quarter of section 5, township twenty-four north, of range two, east of the third principal meridian, and containing, by estimation 173.58 acres. That said conveyance was made to the said Charles H. Rodes by the said defendants, Thomas and Anna Helm, in consideration of love and affection of said Thomas Helm for his wife and heirs at law, and that said conveyance was made in trust to the said Charles H. Rodes as trustee for the purpose to-wit: that said trustee was directed to pay over to said Thomas Helm for and during his natural life the net annual income or profits arising from the proceeds of the sale thereof in case that it was sold, and in case the said Anna Helm survived her husband, then the one-half of the said land or the one-half of the proceeds of sale was to be held by the said trustee the net income or profit arising from the one-half of the said land or the one-half of the net proceeds of...