Sebastian County Coal & Mining Co. v. Fidelity Fuel Co.

• Decision Date: 25 June 1927
• Docket Number: 27854
• Parties: Sebastian County Coal & Mining Company v. Fidelity Fuel Company, Appellant
• Court: Missouri Supreme Court

296 S.W. 154

317 Mo. 610

Sebastian County Coal & Mining Company v. Fidelity Fuel Company, Appellant

No. 27854

Supreme Court of Missouri

June 25, 1927

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Goodwin Creason and A. N. Gossett for appellant.

(1) The trial court erred in overruling defendant's motion to permit it to file the amended cross-bill or counterclaim for the reasons: (a) Plaintiff's motion to strike out the whole cross-bill or counterclaim set out in defendant's second amended answer to plaintiff's third amended petition, going to the sufficiency of the pleading, must under the decisions of this court, be governed by the rules applicable under the statute to general demurrers to like pleadings. Paddock v. Summers, 102 Mo. 235; State ex rel. v. Ellison, 266 Mo. 423; Ewing v Vernon County, 216 Mo. 681. (b) Sec. 1226, R. S. 1919 prescribed the grounds upon which a demurrer may be filed against a pleading, one of them being that the pleading states no cause of action or no defense (just the grounds set up in plaintiff's motion to strike said second amended cross-petition of defendant). (c) Section 1229 provides that if a demurrer to a pleading be sustained, the pleader may take either one of two courses; first, he may stand on his pleading and let judgment go against him, which becomes final, and ends his case or defense, unless the action of the trial court is reversed on appeal; or, second, he may file an amended pleading. (d) The court in its decision on the former appeal, 274 S.W. 774, treated plaintiff's so-called motion to strike out defendant's cross-petition, by the rules applicable under the statute to a general demurrer. The plaintiff in its motion, challenged the sufficiency of the cross-petition. This court pointed out reasons why said cross-petition did not state cause of action, and on that ground alone, affirmed the action of the trial court in striking out the cross-petition. Under the statute, and the above decisions, only a demurrer lies in such case. (2) Until there is a judgment entered of record in the trial court against the pleader, his case is still pending in that court, and the appellate court has no jurisdiction, although it sometimes does consider the case and comment on the point raised, as did this court in the case at bar on the former appeal. Nobles v. Spalding, 51 Mo. 571; Spears v. Bond, 79 Mo. 467. (3) In the case at bar, no judgment has ever been entered for or against the defendant on its cross-petition. Therefore it follows, as of course, that defendant is still in the lower court, and that that court erred in refusing to permit defendant to file its amended cross-petition and counterclaim. Authorities above. (4) On many occasions, this court has held that it would not allow a creditor who has a lien on the debtor's property of many times the value of the debt to him, to take over that security as his own, without a foreclosure of the lien, because to do so, would be so unconscionable and oppressive as to ruin the debtor and to stock the conscience of the court. Brent v. Robinson, 16 Mo. 129; Wilson v. Drumrite, 21 Mo. 325; Chance v. Jennings, 159 Mo. 554; Reiley v. Cullen, 159 Mo. 322; Robb v. Wolf, 148 Mo. 334; Book v. Beasley, 138 Mo. 460; O'Neil v. Cappelle, 62 Mo. 205; Cobb v. Day, 106 Mo. 278; Sheppard v. Wagner, 240 Mo. 409.

O. E. Swan, Cyrus Crane and John H. Lathrop for respondent.

(1) The first appeal from the original judgment ended the jurisdiction of the circuit court and the mandate of this court affirming the judgment ended the case. The circuit court did not thereafter have jurisdiction to permit the filing of a so-called amended cross-petition or counterclaim. Essey v. Bushakra, 304 Mo. 231; Citizens National Bank v. Donnell, 195 Mo. 564; State ex rel. Robertson v. Kelly, 293 Mo. 297; Keaton v. Jorndt, 259 Mo. 179; State ex rel. v. Edwards, 144 Mo. 467; Viertel v. Viertel, 212 Mo. 562; Donnell v. Wright, 199 Mo. 304. (2) The contention that the original judgment was not final is res adjudicata, but there is no doubt that the original judgment was final, and did not have to embrace a finding on the original cross-petition. That pleading was stricken out on proper motion long before trial and was not in the case at the time judgment was entered. Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 310 Mo. 158, 274 S.W. 774; Ewing v. Vernon County, 216 Mo. 681; Johnson v. United Railways, 227 Mo. 423.

OPINION

Ragland, J.

In 1916, the Sebastian County Coal & Mining Company sued the Fidelity Fuel Company and two other defendants in the Circuit Court of Jackson County, to recover certain past due installments of the rent reserved under a mining lease. To the plaintiff's petition in that case the defendant Fidelity Fuel Company, filed an answer and a cross-petition. In the cross-petition it alleged that it had on the demised premises certain mining tools and equipments of the value of $ 30,000, "which the plaintiff [had] wrongfully and unlawfully seized and converted to its own use, to the damage of the defendant in the sum of $ 30,000." Plaintiff filed a motion to strike out the cross-petition, based on a number of grounds -- among others, that it did not state facts sufficient to constitute a cause of action against plaintiff. The motion to strike out was sustained, and defendant, without asking leave to file an amended pleading, excepted to the court's ruling, and thereafter preserved its exception by a term bill. Subsequently the cause went to trial on the petition and answer, and resulted in a judgment against the defendant, Fidelity Fuel Company, in which no reference was made to its cross-action. From such judgment it prosecuted an appeal to this court, and on that appeal secured a review of the circuit court's ruling, striking out its cross-petition. In fact, the correctness of that ruling presented the principal, if not the only, question for determination on the appeal. Upon full hearing and consideration the ruling of the...