State v. Dunn

• Decision Date: 06 June 1939
• Docket Number: No. 24847.,24847.
• Citation: 129 S.W.2d 17
• Parties: STATE ex rel. HARDT et ux. v. DUNN et al.
• Court: Missouri Court of Appeals

129 S.W.2d 17

STATE ex rel. HARDT et ux. v. DUNN et al.

No. 24847.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Rehearing Denied June 20, 1939.

Appeal from Circuit Court, St. Louis County, Division No. 1; Julius R. Nolte, Judge.

Suit by the State of Missouri, at the relation of Theodore Hardt and Mary Hardt, his wife, against William Dunn and another on the bond of a notary public. There was a verdict and judgment for relators, and from an order sustaining defendants' motion for a new trial, relators appeal.

Affirmed.

Irl B. Rosenblum, of St. Louis, for appellants.

Watts & Gentry and Herbert E. Bryant, all of St. Louis, for respondents.

HOSTETTER, Presiding Judge.

This suit was instituted on November 9th, 1935, in the circuit court of St. Louis County. It is a suit brought by relators, Theodore Hardt and Mary Hardt, husband and wife, against defendants as principal and surety on the bond of a notary public. The bond was in conventional form, the penalty being in the sum of $5,000, and was executed on December 6th, 1927.

The amended petition set out in substance that on August 26th, 1930, they signed a paper purporting to grant to the Phillips Pipe Line Company an easement to construct a pipe line for transporting oil, gas, etc., across their 6.21 acre tract located in St. Louis County, Missouri, and that defendant Dunn fraudulently executed an acknowledgment thereto as of the same date when, in fact, they never acknowledged same at all, and sought judgment for $5,000, the penalty of the bond, with execution for $2,000 damages sustained by them in successfully conducting a suit to hold the easement void and to oust said company from their premises.

The answer contained a general denial, and a plea of the three year bar of the statute of limitations as set out in Sec. 11742 in Chapter 80, R.S.Mo.1929, Mo. St.Ann. § 11742, p. 6137, relating to notaries public and containing, inter alia, the following: "Said bond, after having been so recorded, shall be filed in the office of the secretary of state, and may be sued on by any person injured; but no suit shall be instituted against any such notary or his sureties more than three years after such cause of action accrued."

The cause was tried to a jury on the 25th and 26th of October, 1937, resulting in a verdict and judgment in favor of plaintiffs for the amount of $5,000, the penalty of said bond, and $1,100 damages. In due time defendants filed their motion for a new trial which contained, inter alia, the following ground: 5. The Court erred in overruling the demurrer to the evidence offered by the defendants at the close of the evidence offered by plaintiffs.

On December 16, 1937, the trial court sustained defendants' motion for a new trial on said fifth ground thereof, stating that "the court erred in overruling the demurrer to the evidence offered by the defendants at the close of relators' evidence". Thereupon relators duly perfected their appeal to this court. The sole question involved in this appeal is whether relators' suit was barred by the three year statute of limitation.

The evidence, all of which was offered by relators, shows that the right-of-way contract referred to as relators' exhibit A, was recorded in the office of the Recorder of Deeds in St. Louis County, Missouri, on January 5, 1931, approximately four years and ten months prior to the institution of the present suit, and, further, that on September 9, 1932, the relators herein were actually furnished at their request with a photostatic copy of said contract as recorded, being some three years and two months prior to the institution of this suit. The photostatic copy showed on its face that it had been recorded in the Recorder of Deeds' office on January 5, 1931. Plainly, the relators' cause of action accrued on January 5, 1931, when the contract was recorded, or on September 9, 1932, when an actual photostatic copy of the contract as recorded was given to relators and was read by them at that time, or, if not read in its entirety, when they had ample opportunity to do so. We have reached the conclusion that relators' claim is barred by said three year statute of limitation.

The following facts appear to be affirmatively shown in evidence adduced by the relators: They signed the "Right-of-Way Contract" on August 26th, 1930. Thereafter, it was falsely acknowledged, and, by reason of such acknowledgment, it was duly recorded in the office of the Recorder of Deeds of St. Louis County on January 5, 1931. Mary Hardt, one of the relators who claimed that she generally attended to things herself, testified: "There was so much fighting going on about this pipe line in our neighborhood", and, in answer to a question as to when was the first time she found out about its being recorded, replied: "In August, 1932 I wrote Mr. Rittenbusch to kindly send me a copy of this contract and then it took him until the month of September that he sent it". On her cross examination she was handed plaintiffs' Exhibit A by defendants' counsel and testified that both she and her husband signed the original contract, of which Exhibit A was a photostat; that she signed it some time in August; that she wrote on August 26, 1932, to the Phillips Pipe Line Co., and asked them for a copy of the contract; that after that, in September (the latter part), she received a letter from Phillips Pipe Line Co., enclosing the photostatic copy of the contract, Exhibit A; that the Phillips Pipe Line Company's letter might have been dated September 7th, and that Mr. Ritterbusch, to whom she had written, had said that he had received her letter of August 26th, and that he had been out of town for a few days, but that now he was enclosing this photostatic copy.

The witness further testified: "Q. Now, when you received this right-of-way contract, did you read it? A. I sure did. Q. Very carefully? I mean, referring —...