Smith v. Hackleman

• Decision Date: 01 April 1971
• Docket Number: No. 9079,9079
• Citation: 467 S.W.2d 61
• Parties: Helen SMITH and Roy E. Hackleman, Plaintiffs-Respondents, v. Robert G. HACKLEMAN, Defendant-Appellant, and Gertrude H. Richards, Defendant.
• Court: Missouri Court of Appeals

Page 61

467 S.W.2d 61

Helen SMITH and Roy E. Hackleman, Plaintiffs-Respondents, v. Robert G. HACKLEMAN, Defendant-Appellant and Gertrude H. Richards, Defendant.

No. 9079.

Springfield Court of Appeals, Missouri.

April 1, 1971.

Motion for Rehearing or to Transfer to the Supreme Court

Denied April 27,

1971.

Robert F. Middleton, Ewing, Ewing, Carter, Wight, Woodfill & Middleton, Nevada, for plaintiffs-respondents.

John M. Belisle, Osceola, for defendant-appellant.

TITUS, Presiding Justice.

Shortly before he died on September 12, 1966, Otis Hackleman conveyed certain real estate to his five children (Helen, Roy, Robert, Gertrude and Billie) as tenants in common. Two years thereafter Helen and Roy brought a partition suit in which the other three tenants in common were named defendants. Civil Rule 96.01 et seq., V.A.M.R.; § 528.010 et seq., RSMo 1959, V.A.M.S. Partition was decreed, the property was sold on November 11, 1968, and final judgment was entered December 6, 1968. ¹ Helen and Roy, as plaintiffs, instituted the present action on April 24, 1969, against Robert and Gertrude, as defendants, seeking an accounting of the rents and profits the defendants allegedly had collected on the partitioned property from third persons during the period the parties were tenants in common. Billie, a nonresident of Missouri, was not a party to the accounting suit and Gertrude was later absolved of all liability. The trial court entered judgment requiring defendant Robert to pay $512.12 to each plaintiff, which sum represented one-fifth of the rents and profits the court believed Robert had received. In this appeal by defendant Robert he contends inter alia, as he has continuously from the inception of the case, that when plaintiffs brought the partition suit without demanding an accounting, they split their cause of action and the final judgment in partition is res judicata to bar the present cause.

Appellant relies upon Dunn v. Pickard, Mo.App., 284 S.W.2d 6, to sustain his contention. This reported case may better be understood through a combined narration of the facts therein with those pertinent to its companion, Ott v. Pickard, 361 Mo. 823, 237 S.W.2d 109. Francis Wilson died testate in 1916 leaving five children. To his daughter, Annie, he devised the disputed property for life 'and at her death to descend to and become the property of her blood heirs in fee simple.' Annie married Ott in 1917 and in 1918 her four brothers and sisters gave her a quitclaim deed to the property which provided that the deed was 'made to clear title to the above described lands owned jointly by grantors and grantee.' Annie died in October 1948 without issue and her surviving four brothers and sisters, in the mistaken belief they then owned the property, conveyed it to John and Etta Pickard who apparently obtained the rents and profits therefrom during the years of 1949 and 1950. In the meantime Ott, as surviving widower, elected to take one-half of Annie's estate subject to debts and, at sometime not disclosed by the opinion but after the rents in question had been collected, filed suit against the Pickards and Annie's brothers and sisters in two counts; the first to try and determine title to the property and the second for partition. No claim for an accounting of the rents and profits was stated in the petition. In an opinion filed February 12, 1951, the Supreme Court held in Ott v. Pickard, supra, 237 S.W.2d at 112(8), that the 1918 quitclaim deed had effectively transferred to Annie the existing as well as the after-acquired interests of her brothers and sisters in the property. Ott expired and the administratrix of his estate, Dunn, filed suit against the Pickards and Annie's siblings for an accounting of the rents and profits that had been derived from the property in 1949 and 1950. In a November 1955 opinion, the Kansas City Court of Appeals ruled in Dunn v. Pickard, supra, 284 S.W.2d at 10(8), that Ott's failure to include his claim for 'accrued rents and profits' ² in Ott v. Pickard constituted 'a splitting of the plaintiff's cause of action, (and that) the final judgment in (Ott v. Pickard) is res judicata, barring the present action.' We believe the facts in Dunn parallel those in the instant case and that its ruling is controlling here.

In an effort to extricate themselves from the predicament presented by the last mentioned authority, plaintiffs represent that '(t)he Dunn case really hinges on a theory of waiver,' but it seems abundantly clear, at least to us, that the defense of waiver was rejected by the court and held to be inapplicable. Dunn v. Pickard, supra, 284 S.W.2d at 9(1--3). Contrary to plaintiffs' repeated assertions that the Dunn case 'has never been cited,' we find it listed in three opinions. ³ However, if plaintiffs mean the case has never been cited to the exact point which concerns us now, they are correct insofar as our research has revealed.

Plaintiffs' brief attributes to Jeffress v. Piatt, Mo., 370 S.W.2d 383, 386(4), 'a direct statement that accounting will lie, either at the same time, or following the partition suit.' Jeffress did not deal with our particular problem because the defendants in that partition suit had filed a counterclaim for an accounting and the splitting of a cause of action was not an issue. The 'direct statement' in Jeffress to which plaintiffs allude is a quotation of Bates v. Hamilton, 144 Mo. 1, 13, 45 S.W. 641, 643, which reads that 'where neither (tenant in common) occupies the property for his own use and one rents it * * * to third persons and collects the rents, * * * the rule is (that) an accounting may be had in a suit for partition if there is anything due at the time that suit is begun and...