Shinn v. Wooderson

• Decision Date: 03 March 1902
• Citation: 75 S.W. 687,95 Mo.App. 6
• Parties: GEO. W. SHINN, Appellant, v. J. I. WOODERSON et al., Respondents
• Court: Kansas Court of Appeals

75 S.W. 687

95 Mo.App. 6

GEO. W. SHINN, Appellant, v. J. I. WOODERSON et al., Respondents

Court of Appeals of Missouri, Kansas City

March 3, 1902

January 20, 1902;

Rehearing Granted 95 Mo.App. 6 at 14.

Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Cause Remanded.

F. B Ellis for appellant.

(1) A motion in arrest can only be upheld when a petition fails to state a cause of action, or there is some defect which renders the judgment void. A motion in arrest only reaches defects which are apparent upon the face of the record proper. In this case the petition and judgment both are regular. Black on Judgments, 98; White v. Caldwell, 17 Mo.App. 691. (2) A defective pleading can not be taken advantage of by a motion in arrest of judgment. It is only where a petition is defective in some essential averment. Carrington v. Hancock, 23 Mo.App. 299; Coal Co v. Brewing Co., 20 Mo.App. 16. (3) If the trustees were made parties, then that is all that is material. It is then perfectly clear that the defendants Wear and Harmon have no interests in the result of this suit. The trustees are the only parties who are in interest. The judgment is against them and no one else. In a suit in equity to enforce a contract against church property the trustees of such church who executed the contract, are the only necessary parties defendant. Bushong v. Taylor, 82 Mo. 660; Kuehl v. Meyer, 50 Mo.App. 648; Hitch v. Stonebraker, 125 Mo. 128. (4) It must be presumed that the evidence in the absence of any showing to the contrary fully warranted the judgment of the court. The judgment was entirely within the limits of the pleadings. Lawless v. Lawless, 47 Mo.App. 529; Jordan v. Buschmeyer, 97 Mo. 94; Kehoe v. Taylor, 31 Mo.App. 588.

Jno. A. Cross & Sons, and E. C. Hall for respondents.

(1) The petition, on its face, shows that plaintiff's cause of action accrued to him on March 22, 1894, and that suit was instituted on the twelfth day of August, 1899, more than five years after his cause of action accrued. This defect can be reached by demurrer. Boyce v. Christy, 47 Mo. 70; Henoch v. Chaney, 61 Mo. 129. (2) Wherever a general demurrer to a petition would be well taken, a motion in arrest of judgment is equally available. Hart v. Harrison Wire Co., 91 Mo. 414. (3) When no legal cause of action is set forth in the petition, the judgment will be arrested. Langford v. Sanger, 40 Mo. 160; Syme v. Steamboat Ind., 28 Mo. 335. (4) The petition does not allege a resulting trust, which arises by mere implication of law, but an express trust, created by the contract and the agreement of the parties, and must be manifested and proved by some writing signed by the party to be charged. R. S. 1899, sec. 3416; Kelly v. Johnson, 28 Mo. 249; Kennedy v. Keating, 34 Mo. 25; Woodford v. Stephens, 51 Mo. 443; Mansur v. Willard, 57 Mo. 347; Green v. Cates, 73 Mo. 115; Price v. Kane, 112 Mo. 412; Sell v. West, 125 Mo. 621; Weiss v. Heitkamp, 127 Mo. 23; Devore v. Devore, 138 Mo. 181; Hackett v. Watts, 138 Mo. 502; Hurt v. Ford, 142 Mo. 283; Richardson v. Champion, 143 Mo. 538; Hillman v. Allen, 145 Mo. 638; Curd v. Brown, 148 Mo. 82. (5) The statute of frauds is available without special pleading. Devore v. Devore, 138 Mo. 181; Hackett v. Watts, 138 Mo. 502; Hurt v. Ford, 142 Mo. 283; Hillman v. Allen, 145 Mo. 638. The statute of frauds can be raised by demurrer to the petition. Rogers v. Ramey, 137 Mo. 598. (6) Express trusts must be proved by some writing signed by the party to be charged. Hillman v. Allen, 145 Mo. 638. (7) The statute of limitations is applicable to all civil actions, resulting and implied trusts. Landis v. Saxton, 105 Mo. 486; Reed v. Painter, 145 Mo. 341; Flint on Trusts, 110; Wood on Limitations, sec. 232, p. 161. A vendor's or grantor's lien is lost if a right of action is barred by the statute of limitations. R. S. 1899, sec. 4276; Adair v. Adair, 78 Mo. 630; Pingrey Mortgages, sec. 1568; Schmucker v. Sibert, 18 Kas. 104; s. c., 26 Am. Rep. 765; Blackwell v. Barett, 21 Alb. L. J. 277; Trotter v. Erwin, 27 Miss. 772; Borst v. Corey, 15 N.Y. 505.

OPINION

BROADDUS, J.

The petition in this case was filed in the office of the circuit clerk of Clinton county, Missouri, on the twelfth day of August, 1899, and on the same day service was had on the defendants mentioned in the caption. On the twentieth day of September, 1899, and on the ninth day of the regular term of said court, the plaintiff was allowed to amend his petition by making Valentine Harmon and Richard Wear defendants, and the judgment then and there rendered shows that said Harmon and Wear entered their appearance, and that the defendants Wooderson, Maret and Kenney made default and the defendants' (without specifying which defendants) "demurrer to the petition is taken up and overruled and all and singular the matters and things are submitted to the court upon the pleadings and the proof," etc., and the court finds for the plaintiff a balance due on his account $ 272.81 with interest at six per cent from March 22, 1894, and declares a lien on the premises described in the petition to the extent of his judgment.

On September 23, 1899, the defendants Harmon and Wear filed their motion to set aside, the judgment by default, and the other defendants also filed motion to set aside judgment by default and motion in arrest of judgment.

On the twenty-ninth day of March, 1900, on the twelfth day of the regular term of said court, the court sustained the motion of defendants Harmon and Wear to set aside said judgment of default and leave was given them to plead in twenty days after the adjournment of court; and the plaintiff was allowed ten days after adjournment to amend his petition by interlineation and the cause was continued until the next term. At the next term, 1900, the case was continued until the next term, upon the application and at the cost of the plaintiff.

On the twelfth day of September, 1900, the plaintiff dismissed his suit against defendants Harmon and Wear. On the twenty-fifth day of September the motion in arrest of judgment, filed by the remaining and original defendants to suit, was taken up and sustained. It is from this judgment that the plaintiff has appealed. The petition reads as follows:

"George W. Shinn, Plaintiff, against

J. I. Wooderson, D. H. Maret, E. G. Kenney, Richard Wear and Valentine Harmon, Trustees for the Calvary Baptist Church, of Lathrop, Missouri, Defendants.

"Plaintiff states that on the seventh day of October, 1892, George W. Shinn, this plaintiff, and Valentine Harmon and Richard Wear, James B. Scott, Willmana Scott, his wife, Ed. L. Scott and Anna May Scott, his wife, conveyed to J. I. Wooderson, D. H. Maret and Geo. W. Shinn, lot 8 in block 24 in the city of Lathrop, Clinton county, Missouri, for the purpose of erecting and building thereon a church to be known as the Calvary Baptist Church of Lathrop. That on the -- day of , 1896, the members of said Calvary Baptist Church duly elected the above-named defendants Wooderson, Maret and Kenney as the successors of the said Shinn, Wear and Harmon, who are now the trustees for said church for the purpose of holding the title thereof and for the management of the business affairs thereof. That for the purpose of purchasing said lot and the erection of said church, the plaintiff furnished to said trustees the sum of $ 1,812.96; that there has been paid on said sum by defendants the sum of $ 1,540.15, the amount of which will more fully appear by an itemized account which is herewith filed and made a part of this petition, and marked 'Exhibit A.' That out of said sum so paid by plaintiff there remains due plaintiff $ 271.81, together with six per cent interest thereon, from March 22, 1894, the date of the last item in said account. Plaintiff says that it was understood and agreed by and between the plaintiff and the said other trustees and members of said congregation that if plaintiff would pay off and discharge the obligations of said church as aforesaid the plaintiff should, in case of the failure of said trustees to pay said sum, as aforesaid, then the said officers were to execute and deliver to plaintiff, a mortgage upon said lot for the balance of said sum. That the defendants have failed and refused to pay said sum although the same is now past due and has been demanded. Wherefore plaintiff prays judgment for the sum of $ 272.81, with six per cent interest thereon from March 22, 1894, and that the same be declared a mortgage and lien upon said lot and church building, and in case of the failure of defendants to pay said sum the same to be sold to satisfy said debt and interest, and for such other and further relief as plaintiff in equity may be entitled to have.

"F. B. ELLIS, Att'y for Plaintiff."

An itemized account of moneys laid out and expended in behalf of the trustees of the church is attached to the petition. The last item according to the account was furnished March 22, 1895, but the petition alleges the date to have been March 22, 1894, and as it is the petition that we will have to consider and not the account, the latter date will be held as the true date.

The court arrested the judgment on the following motion, viz "1. That upon the record the judgment is erroneous. 2. That the petition does not state facts sufficient to constitute a cause of action against the defendants. 3. That the judgment and finding of the court is not responsive to the issue made by the pleadings. 4...