Starr v. Mitchell

• Decision Date: 12 March 1951
• Docket Number: No. 1,No. 42176,42176,1
• Parties: STARR et al. v. MITCHELL
• Court: Missouri Supreme Court

Page 123

237 S.W.2d 123

361 Mo. 908

STARR et al. v. MITCHELL.

No. 42176.

Supreme Court of Missouri, Division No. 1.

March 12, 1951.

Carstarphen & Harvey, Hannibal, for plaintiff-respondent.

Robert E. Brown, Palmyra, for defendant-appellant.

VAN OSDOL, Commissioner.

In this action the trial court cancelled and set aside a trustee's deed made pursuant to a sale under a deed of trust, and granted other and further relief. Defendant attempted to perfect an appeal to the St. Louis Court of Appeals. However, the St. Louis Court of Appeals transferred the cause to this court on the ground the case is one involving title to real estate. Starr v. Mitchell, Mo.App., 231 S.W.2d 299; Cordia v. Matthes, Mo.App., 122 S.W.2d 32, Id., 344 Mo. 1059, 130 S.W.2d 597; Section 3, Article V, Constitution of Missouri 1945, Mo.R.S.A.Const. Art. V, Sec. 3.

The St. Louis Court of Appeals correctly summarized the trial issues and the general effect of the trial court's judgment and decree in Starr v. Mitchell, supra, 231 S.W.2d at page 300. And the St. Louis Court of Appeals correctly stated that the transcript of the record shows the judgment was rendered April 8, 1949; that the timely filed motion for a new trial was overruled May 28, 1949; and that the defendant filed an affidavit for appeal, such as was employed under the former practice, on June 10, 1949, more than ten days after May 28th. The clerk of the trial court had also transmitted to the St. Louis Court of Appeals a copy of a notice of appeal, signed by defendant's counsel, dated and filed in the trial court June 10, 1949, in which notice it was stated the appeal was from the final judgment and order overruling the motion for a new trial, 'entered in this action on the 31st day of May, 1949.'

As stated, the transcript of the record recites that the motion for a new trial was overruled May 28, 1949. There had been no explanation of the discrepancy as to the date of the overruling of the motion for a new trial (on which date the trial court's judgment and decree, in the instant case, became final for the purpose of ascertaining the time within which an appeal might be taken, Supreme Court Rule 3.24), as such date is recited in the transcript of the record (May 28, 1949), and as stated in defendant's notice of appeal (May 31, 1949).

It is a mandatory requirement that a notice of appeal be filed 'not later than ten days after the judgment or order appealed from becomes final', Section 129, Civil Code of Missouri, Laws of Missouri 1943, p. 353 at gages 390-391, Mo.R.S.A. Sec. 847.129, Section 512.050, R.S.1949, except where the ten days have expired, and the filing of a notice of appeal, within six months from the date of final judgment, has been permitted by a special order of the appropriate appellate court, Section 130, Civil Code of Missouri, Laws of Missouri 1943, p. 353 at page 391, Mo.R.S.A. Sec. 847.130, Section 512.060, R.S.1949. The timely filing of a notice of appeal is the statutory 'vital step' for perfecting an appeal, and is jurisdictional. Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311; Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657; Krummel v. Hintz, Mo.App., 222 S.W.2d 574; Sections 512.050 and 512.060, supra.

This court, on its own initiative, has made inquiry of the clerk of the trial court as to the correct date of the overruling of the motion for a new trial and this court has ascertained that the date, May 28, 1949, was an inadvertent misstatement in the record; and that the motion for new trial was actually overruled May 31, 1949. We have directed the correction of the misstatement, and the correction has been certified to the clerk of the trial court pursuant to Section 135, Civil Code of Missouri, Laws of Missouri 1943, p. 353 at pages 393-394, as amended by repeal and re-enactment, Vol. II, Laws of Missouri 1947, pp. 219-220, Mo.R.S.A. Sec. 847.135, Section 512.110, R.S.1949.

Plaintiffs-respondents, Starr and wife, bought the described 140 acres of land involved in the instant action from defendant-appellant, Mitchell, in December 1946. The transaction was handled by appellant and appellant's agent at Woodhull, Illinois, near which city respondents then lived. Respondents undertook to pay appellant $5600 for the described land. The purchase price was represented by a note of $3000 secured by a deed of trust to Marion Voepel and wife; two $500 notes, one to appellant and one to appellant's partner, John T. White (these two notes were due five years after date, and bore 5% interest); and the balance, $1600, was paid in cash or personalty. The two $500 notes were secured by one deed of trust, the lien of which was subsequent to that of the deed of trust securing the $3000 note payable to Voepel and wife.

As inducements for the transaction appellant had told respondents that he would help them in getting 'started in the farm operations,' and would assist them in getting a government loan by which respondents would be able to buy livestock for use in operating the farm. The payment of the $1600 on the purchase price had nearly exhausted respondents' resources, and appellant advanced respondents sums of money for transportation from Illinois, for farming operations, and for living expenses. There was an accounting and settlement as to these advances, respondents paying appellant cash in part; but a balance of $500 was represented by respondents' note dated April 28, 1947, due six months after date. This note was unpaid at the time of trial. The note was secured by a chattel mortgage on respondents' automobile.

Respondents continued to farm the described lands until the spring of 1948, having put in twelve acres of wheat in the fall of 1947. Respondents with appellant's assistance had negotiated a government loan. However, in February 1948, respondents asked appellant to advance additional funds to assist in the farming operations and, being unable to procure additional moneys, respondents felt obliged to give up their personal operation of the farm. Respondent Starr rented the farm to one Chatfield, and the Starr family returned to Illinois. (When the farm was rented to Chatfield, respondent Starr agreed to have the house wired for electricity. Acting for respondents, appellant had the house wired and, at the time of trial, respondents had not repaid appellant the sum of $136 which appellant had paid out in making this improvement.) Before returning to Illinois, respondents were required to settle the government loan and appellant advanced $252 to assist in paying off the loan. Respondents gave appellant their note for that amount secured by a chattel mortgage on the growing wheat. The note was payable in installments of $25 per month. Respondents had paid six installments on this note, leaving an unpaid balance of $102 principal at the time of trial.

When the Starr family returned to Illinois, there was an arrangement entered into by which appellant was to act for respondents in matters pertaining to respondents' farm. There was a conflict in the testimony relating to the terms of this agreement. Appellant testified that 'Mr. Starr turned the rent contract and everything over to me and I was to fulfill his part * * *. Mr. Starr came to me and told me too see that the wiring was put in.' Respondent Starr testified that appellant 'was to look after that wheat and see that it was harvested, put in on the market and take that money and put it in the bank in a joint account to his and my credit. Then I was to come down here in September and make settlement and apply that money to the two real estate notes, the interest.' Respondents' son testified it was agreed that, in September, the wheat money was to be used to pay the interest on the two $500 notes 'on the place and they were going to take the balance of it and apply on the principal.' (Appellant undertook to apply the net proceeds of the sale of the wheat on the $500 note of April 28, 1947.)

In late March or in April 1948, after the Starr family had gone back to Illinois, appellant purchased from his former partner the $500 (White) note for the sum of $250. And in late July 1948, appellant directed foreclosure of deed of trust (the first publication of the notice of sale in foreclosure was on July 28th), and bought in the land at the foreclosure sale, although at the time appellant had in his hands the sum of $402.82 net proceeds of the harvested wheat crop; and appellant had on July 20, 1948, written respondent Starr as follows, 'When you left here I did not think it possible for you to hold the farm and catch up but not I have changed my mind if you can make payments of $25 monthly until next April and let me rent the farm to Mr. Chatfield for next yr. I will guarantee that the farm will be up to date and your interest and taxes paid to first of Jan. 1950, and your notes to me together with electricity in fact everything paid until that time * * *. If you accept this proposition keep this letter as it will be your contract with me, as I might pass away before that time and I will keep your letter of acceptance the same way. Let me hear...