State v. Landon
| Decision Date | 03 July 1924 |
| Docket Number | No. 24188.,24188. |
| Parties | STATE ex rel. LUNSFORD et al. v. LADON, Circuit Judge. |
| Court | Missouri Supreme Court |
Stone, McDermott, Webb & Johnson, of Topeka, Kan., and Gamble, Trusty & Pugh, of Kansas City, Mo., for respondent.
Certiorari. The relators by this proceeding seek to quash the record of the circuit court of Jackson county, in a case wherein W. H. Davis is plaintiff, and Nora "L. S. Lunsford and William G. Lunsford are defendants, and the property of defendants attached. The Fidelity Deposit Company, not a party to the action, is surety on the defendants' bond to dissolve the attachment levied on defendants' property. The facts appear in the petition of relators for the writ and respondent's return to the same. The respondent, after filing his return, moved to quash the writ.
The plaintiff, Davis, in his first petition, stated his case in five counts against the defendants named above and William G. Lunsford, Jr. In the first count he alleged that October 1, 1918, he entered into a contract with the defendants whereby he was to convey to defendants certain lots in Kansas City, in consideration of which the defendants were to convey to him 7,000 acres of land in Hale county, Ala., free and clear of incumbrances, of the value of $37.71 per acre; that the plaintiff, in accordance with the agreement, conveyed his Kansas City property, but defendants refused to convey the 7,000 acres—in fact, conveyed only 6,678 acres, which was 322 acres short of what they agreed to convey—whereby the plaintiff was damaged in the sum of $11,497.62, for which he asked judgment.
The second count alleged that the land conveyed by the defendants was incumbered by a mortgage for $980, due January 1, 1909, wherefore the defendant was damaged in the sum of $980 and interest, for which he asks judgment.
The third count alleged that the land was incumbered by a mortgage for $1,020, bearing interest from January 1, 1910. Judgment was asked for that sum and interest.
The fourth count alleged an incumbrance of $1,500, bearing interest from January 1, 1911. Judgment was asked for that sum and interest.
The fifth count alleged that the plaintiff purchased of the defendants a safe, price $600, the combination of which the defendants agreed to furnish to the plaintiff, but failed to do so, thereby damaging the plaintiff to the extent of $600, for which he asks judgment.
The contract, mentioned in the petition as Exhibit A, is of great length, and states in detail the arrangement between the parties. Attached to it are Schedules A and B. Schedule A mentions the Alabama land of the defendants. Schedule B describes plaintiff's Kansas City land and recites that it consists of the Coates House proper and other property; that defendants were to borrow $100,000 on the property, of which $40,000 was to be paid to the plaintiff, and the balance to be retained by the defendants; that the defendants were to give a note of $90,000 to the plaintiff. Other conditions are mentioned in the schedule.
A writ of attachment was asked and issued on the ground that the defendants were nonresidents of the state of Missouri, and the Coates House attached. Defendants filed their joint answer to the petition and moved the court to dissolve the attachment, because the only ground for it alleged was the nonresidence of the defendants. Thereupon the plaintiff filed an attachment bond in the sum of $34,537.50, and the motion to dissolve was overruled.
In addition to the attachment of the real estate, the lessee of the Coates Hotel property and the bank in Kansas City in which defendants had their funds were garnished, and $6,000 of the money of defendants was ordered paid into court, whereupon the defendants furnished a bond in the sum of $19,000, with the Fidelity & Deposit Company of Maryland as surety, conditioned that the defendants would pay any amount which might be adjudged against them in the case, and the attachment was dissolved. Thereafter an amended and a second petition were filed by the plaintiff, the proceedings in relation to which need not be noticed.
On March 9, 1922, the plaintiff filed a third amended petition in four counts. On March 13, 1922, the defendants filed a motion to strike out the first, second, and third counts of the third amended petition on the ground of departure, which motion, on July 7, 1922, was by the court overruled. The defendants moved for a rehearing upon the motion, and September 16, 1922, the motion for rehearing was overruled. On October 2, 1922, the defendants Nora L. S. Lunsford and William G. Lunsford filed an answer to the third amended petition. On October 9, 1922, the plaintiff filed a reply to said answer. On October 10, 1922, the defendants filed a motion to vacate the attachment dissolution bond, or materially reduce the penal sum thereof.
On the same day the Fidelity & Deposit Company of Maryland filed an application to vacate or reduce the defendants' attachment dissolution bond. December 2, 1922, the two motions were overruled, and in January, 1923, the defendants applied to this court for writ of certiorari, and March 3, 1923, the writ was issued. It is claimed by the relators that the circuit court exceeded its jurisdiction in overruling the motion of the plaintiff, Davis, to strike out parts of the third amended petition, and in overruling the two motions to vacate or reduce the attachment dissolution bond, that the relators have no remedy by appeal, and that certiorari is the proper remedy to correct such errors.
The first count of the third amended petition alleges the exchange of real estate as set out in the first amended petition by a contract dated October 1, 1918, relating more in detail the terms of the contract. It recites the execution and delivery of the deeds, and alleges " that November 8, 1918, defendant W. G Lunsford tendered to plaintiff, in fulfillment of the contract, a certain deed which in several particulars did not conform to the requirements of the contract; that among other things the deed did not include 322 acres of the land the contract called for; that the plaintiff refused to accept the deed; that in addition to the tender of the deed the defendants also tendered an agreement in writing under date of November 1, 1918, which stipulated that the defendants would procure a title to the additional 322 acres and convey the land to the plaintiff by good and sufficient warranty deed; that defendants would discharge all the incumbrances against the said property, all of which is evidenced by two contracts, marked Exhibits C and D; that the plaintiff, in consideration of the undertakings of the two contracts accepted the deed and the said contracts. It is th'en alleged that the defendants wholly failed to...
To continue reading
Request your trial
-
Campbell v. Cnty. Comm'n of Franklin Cnty.
...favors the right of respondents to attack by proper motion the regularity of the issuance of the writ.Id.; see also State ex rel. Lunsford v. Landon, 265 S.W. 529, 530, 532 (Mo. banc 1924) (granting motion to quash writ as improvidently granted where motion was filed after return); State ex......
-
State v. Pfeffle
...well-established principle that the writ of certiorari performs the same office in this jurisdiction as at common law. State ex rel. v. Landon, 304 Mo. 654, 265 S. W. 529; State ex rel. v. Goodrich, 257 Mo. 40, 165 S. W. 707; State ex rel. v. Dawson, 284 Mo. 490, 225 S. W. 97; State ex rel.......
-
Bentrup v. Johnson and Lehmann.
...have waived their right to complain of a departure. Boyd v. St. Louis Brewing Ass'n, 5 S.W. (2d) 46 (Sup. Ct.): State ex rel. Lunsford v. Landon, 304 Mo. 654, 265 S.W. 529; Liese v. Meyer, 143 Mo. 547. (3) The petition states a cause of action in equity in the nature of a bill of interplead......
-
Tucker v. Hagan
... ... Liese v. Meyer, 143 Mo. 547, 45 S. W. 282; State ex rel. v. Landon, 304 Mo. 654, 265 S. W. 529; Crecelius v. Chicago, M. & St. P. Ry. Co., 284 Mo. 26, 223 S. W. 413; Castleman v. Castleman, 184 Mo ... ...