State ex rel. Pisarek v. Dalton, No. 38093
| Court | Missouri Court of Appeals |
| Writing for the Court | ALDEN A. STOCKARD; SIMEONE, C. J., and NORWIN D. HOUSER |
| Citation | 549 S.W.2d 904 |
| Parties | STATE of Missouri ex rel. Leo L. PISAREK and June L. Pisarek, Relators, v. The Honorable Donald E. DALTON, Judge, Circuit Court of the 11th Judicial Circuit, for the State of Missouri, St. Charles, Missouri, Respondent. . Louis District, Division Four |
| Docket Number | No. 38093 |
| Decision Date | 05 April 1977 |
Page 904
v.
The Honorable Donald E. DALTON, Judge, Circuit Court of the
11th Judicial Circuit, for the State of Missouri,
St. Charles, Missouri, Respondent.
Ernest L. Keathley, Jr., St. Louis, for relators.
Reginal P. Bodeux, Paul F. Niedner, Niedner, Moerschel, Ahlheim & Bodeux, St. Charles, for respondent.
ALDEN A. STOCKARD, Special Judge.
This is an original proceeding in mandamus brought by Leo L. and June L. Pisarek, husband and wife, to compel the respondent judge to vacate his order dismissing Counts IX, X and XI of their petition wherein they sought damages for breach of a contract. We issued our alternative writ, but we now conclude it was improvidently granted.
In Count I of their petition plaintiffs alleged that they entered into a contract with the Alfred Schroeder Development Co., Inc. (there were other defendants named but that is immaterial to this proceeding) whereby it agreed to construct for plaintiffs a dwelling house according to certain plans and specifications for the sum of $32,639.10, but that defendant breached the
Page 905
contract in that the house had nineteen defects, described in the petition, and that by reason of said breach plaintiffs sustained damages in the amount of $7,000.00. Count II, in the alternative to Count I, alleged a breach of implied warranty of fitness.In Count IX plaintiffs alleged that in order to pay the expenses of making the needed repairs and to correct the defects in construction, they were required to borrow $5,000.00 at an annual rate of 7%, and as a result they were further damaged in the amount of $1,400.00, the amount of interest they were required to pay. Judgment was sought in that amount.
Count X, in the alternative to Count IX, alleged a claim for the same item of interest based on the theory of a breach of implied warranty of fitnesses, as alleged in Count II.
In Count XI plaintiffs sought punitive damages. They alleged that after they notified the contractor of the existence of the defects, promises and assurances were made that the defects would be corrected which at the time made were not intended to be kept, and that relying on said promises and assurances plaintiffs did not timely exercise their privilege under the Truth in Lending Act to cancel the deed of trust on said property securing a...
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State ex rel. City of St. Louis v. Litz, No. 46884
...does not ordinarily lie to review the sufficiency of pleadings and the ruling related thereto, see State ex rel. Pisarek v. Dalton, 549 S.W.2d 904, 905 (Mo.App.1977), it has long been the rule in Missouri that when, upon a preliminary question of jurisdiction depending wholly upon the law a......
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State ex rel. Scott v. Sanders, No. 39083
...to discuss the appropriateness of this extraordinary remedy insofar as it relates to pleadings. In State ex rel. Pisarek v. Dalton, 549 S.W.2d 904 (Mo.App.1977), Mr. and Mrs. Pisarek brought an original proceeding in mandamus to compel the respondent judge to vacate his order dismissing cer......
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State ex rel. Hartman v. Casteel, 13122
...his right to prevail in this proceeding. State ex rel. Scott v. Sanders, 560 S.W.2d 899 (Mo.App.1978); State ex rel. Pisarek v. Dalton, 549 S.W.2d 904 For these reasons and because of the inadequate record, in the exercise of its discretion, this court determines that the preliminary order ......
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Dalton v. Borger, No. 38772
...separate and independent claim unrelated to any other claims" joined in the case. Rule 81.06. We held in State ex rel. Pisarek v. Dalton, 549 S.W.2d 904, 906 (Mo.App.1977) that "if plaintiffs had requested, or should now request, the dismissal order to be so designated" as a final order, th......
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State ex rel. City of St. Louis v. Litz, No. 46884
...does not ordinarily lie to review the sufficiency of pleadings and the ruling related thereto, see State ex rel. Pisarek v. Dalton, 549 S.W.2d 904, 905 (Mo.App.1977), it has long been the rule in Missouri that when, upon a preliminary question of jurisdiction depending wholly upon the law a......
-
State ex rel. Scott v. Sanders, No. 39083
...to discuss the appropriateness of this extraordinary remedy insofar as it relates to pleadings. In State ex rel. Pisarek v. Dalton, 549 S.W.2d 904 (Mo.App.1977), Mr. and Mrs. Pisarek brought an original proceeding in mandamus to compel the respondent judge to vacate his order dismissing cer......
-
State ex rel. Hartman v. Casteel, No. 13122
...his right to prevail in this proceeding. State ex rel. Scott v. Sanders, 560 S.W.2d 899 (Mo.App.1978); State ex rel. Pisarek v. Dalton, 549 S.W.2d 904 For these reasons and because of the inadequate record, in the exercise of its discretion, this court determines that the preliminary order ......
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Dalton v. Borger, No. 38772
...separate and independent claim unrelated to any other claims" joined in the case. Rule 81.06. We held in State ex rel. Pisarek v. Dalton, 549 S.W.2d 904, 906 (Mo.App.1977) that "if plaintiffs had requested, or should now request, the dismissal order to be so designated" as a final order, th......