Title Ins. Corp. of St. Louis v. U.S., 32906

• Decision Date: 17 September 1968
• Docket Number: No. 32906,32906
• Citation: 432 S.W.2d 787
• Parties: , 68-2 USTC P 9636 TITLE INSURANCE CORPORATION OF ST. LOUIS, a Corporation, Plaintiff-Respondent, v. UNITED STATES of America et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 787

432 S.W.2d 787

22 A.F.T.R.2d 5648, 68-2 USTC P 9636

TITLE INSURANCE CORPORATION OF ST. LOUIS, a Corporation Plaintiff-Respondent, v. UNITED STATES of America et al., Defendants-Appellants.

No. 32906.

St. Louis Court of Appeals, Missouri.

Sept. 17, 1968.

Motion for Rehearing and for Transfer to Supreme Court

Denied Oct. 24, 1968.

Application to Transfer Denied Dec. 9, 1968.

Veryl L. Riddle, U.S. Atty., Harold F. Fullwood, Asst. U.S. Atty., St. Louis, Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Crombie J. D. Garrett, Robert J. Campbell, Attys., Dept. of Justice, Washington, D.C., for defendants-appellants.

Dubail, Judge & Kilker, William C. Maier, St. Louis, for plaintiff-respondent.

BRUCE NORMILE, Special Judge.

This is an appeal from the summary judgment of the Circuit Court of St. Louis County entered on February 23, 1967. The original action was one begun by Respondent, Title Insurance Corporation of St. Louis to foreclose a deed of trust on real property located at 7223 Creveling Drive, University City, St. Louis County, Missouri. Missouri.

There is no dispute between the parties concerning the facts. On July 23, 1951, Sylvia and Irving Federbush executed a promissory note in favor of Arthur Leussler in the principal amount of $20,000.00 secured by a deed of trust on the Creveling Drive property. The deed of trust was recorded on that day.

On February 5, 1952, the United States filed and recorded a lien against the Federbushes and the Creveling Drive property in the amount of $72,415.60.

On April 20, 1955, the Federbushes refinanced their mortgage with Leussler by executing new promissory notes aggregating $23,000.00 secured by the same Creveling Drive property. At this time there was an outstanding balance on the original 1951 loan of principal of $11,750 and interest for a total amount due of $14,938.17. Leussler had recorded notice of the prior tax lien of the United States at the time of loaning the additional money.

On November 29, 1955, the Federbushes executed a promissory note in the amount of $25,000.00 in favor of Rachel Taslichkey, which was secured by a deed of trust dated November 29, 1955, and recorded December 20, 1955 in St. Louis County. The Trustee was one Burnett Schwartz and the Successor-Trustee was Robert Landsman. Taslichkey, Schwartz and Landsman were joined as Defendants in this lawsuit but did not file pleadings, nor did they appear at the time of trail for the hearing on the Motion for Summary Judgment.

By December 23, 1963, the Federbushes had repaid $11,250.00 on the 1955 notes held by Leussler and there was a total unpaid balance of principal interest and interest then due of $12,608.43. On that date, Leussler assigned all his rights as holder of the 1955 note to Respondent, St. Louis Title Insurance Company.

Title Insurance Company thereafter instituted foreclosure proceedings on February 24, 1964. On October 21, 1965, Respondent and Appellant appeared for the trial of the matter. Defendants Taslichkey, Schwartz and Landsman defaulted. On that date, the Court ordered the real estate to be sold but reserved the questions of the interests and of the priority and rank of the outstanding liens. The sale took place on November 30, 1965 and made the sum of $25,070.61 available to satisfy the above-described liens. This sum was paid into the Registry of the Court.

On May 16 1966, the Title Insurance Corporation moved for a summary judgment claiming priority over all other claimants. United States by counter-motion agreed there was no dispute on the facts and the only question of determination was one of law. Thereafter, on February 27, 1967, the trial court sustained the motion of plaintiff for a summary judgment in favor of Title Insurance Corporation in the sum of $11,750.00 with interest from October 20, 1962, to not exceed the sum of $14,938.17.

Thereafter, on March 27, 1967, the Court on its own motion entered a memorandum ordering that the Order of February 23rd was to be specifically designated as a final judgment for the purposes of appeal within the meaning of Section 512.020, RSMo 1959, V.A.M.S.

Appellant concedes that Respondent was equitably subrogated to all of the rights of the holder of the original note secured by a deed of trust executed in 1951 up to the amount of $14,988.17.

The first issue presented on this appeal is raised by the motion of Respondent, Title Insurance Corporation to dismiss the appeal of Defendants-Appellants, United States of America, et al., on the ground that the appeal is one from an interlocutory order which has not disposed of all issues and is, therefore, premature. In its brief, Respondent correctly submits that the Order did not dispose of the claim of the United States to the remainder of the funds on deposit in the Registry of the court after satisfaction of Respondent's lien, nor did it make any disposition of any rights of the defendants Schwartz, Taslichkey, and Landsman under the deed of trust of November 29, 1955. Respondent then submits that the judgment is not a final one.

Generally speaking, a final appealable judgment is one which disposes of all parties and all issues in the case. Bennett v. Wood, Mo., 239 S.W.2d 325. However, Civil Rule 82.06, V.A.M.R. provides in part as follows:

'When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of Section 512.020, Revised Statutes of Missouri, unless specifically so designated by the court in the judgment entered. * * *' (Emphasis added.)

In effect, the hearing on the Respondent's motion for a summary judgment was a separate trial before the court without a jury and the trial court has designated this judgment as a final one under this rule. The jugment entered does make a complete determination as to the rights of the Respondent as against all the other parties and as rendered does establish the priority of the Respondent's claim. The conflicting claims of the remaining parties may be resolved in a separate hearing. The trial court and not the reviewing court has the discretion to designate this order as a 'final judgment' and it has properly done so here. Dotson v. E. W. Bacharach, Inc., Mo., 325 S.W.2d 737 (2, 3); Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 380--381(4, 5); Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972.

Respondent also urges that no alleged error has been preserved for Appellate review since a motion for a new trial was not filed in the trial court. Respondent cites Civil Rule 79.03, which so provides. However, Rule 79.03 further provides that a motion for new trial is not required in cases involving:

'* * * questions as to sufficiency of the pleadings to state a claim or defense, questions of the sufficiency of the evidence to support the judgment in cases tried as provided by Rule 73.01, questions authorized by Rule 72.02 to be presented in a motion for judgment and questions authorized by Rule 73.01(c) to be presented in a motion to amend the judgment and opinion. * * *'

The duty of the Appellate Court, in reviewing summary judgment cases, is the equivalent of reviewing court tried or equity cases and eventually resolving the question of the sufficiency of evidence to support the summary judgment and finally, if necessary, of entering such judgment as a trial court ought to have given. State, On Information of Reardon v. Mueller, Mo., 388 S.W.2d 53.

Although the facts were agreed in the instant case, the question of sufficiency of those facts or of that evidence to support the judgment is presented. The question as to the sufficiency of the pleadings to state the claim or defense is also presented. The question to be determined is one which could be presented by a motion for a directed verdict at the close of the evidence under Civil Rule 72.02. The question also appears to be one authorized under Rule 73.01(c) in a motion to amend the judgment and opinion.

The case of Morris v. I.C.T. Insurance Company, Mo., 316 S.W.2d 636, involved a motion to require the third party Superintendent of the Division of Insurance to satisfy the plaintiff-respondent's judgment against the defendant insurance company out of funds deposited with the Division of Insurance. In overruling the Superintendent's motion to dismiss the appeal, the court stated: '* * * Nor was a motion for a new trial necessary to preserve for appellate review the allegations of error presented by appellant, since we construe the issues presented to be within the exceptions mentioned in Supreme Court Rule 3.23 (now Rule 79.03), including 'questions of jurisdiction over the subject matter, questions as to the sufficiency of the pleadings to state a claim or defense, (and) questions of the sufficiency of the evidence to support the judgment * * *. '' (Although the Morris case did not involve a motion for summary judgment, it is analogous to this case.)

In support of its position that a motion for new trial was required, Respondent also cited the cases of Brawner v. Brawner, Mo., 327 S.W.2d 808 (1959); Mueller v. Mueller, Mo., 318 S.W.2d 365; and Chance v. Atchison, Topeka & Sante Fe Railroad Co., Mo., 389 S.W.2d 774. The first two cases involved points first raised on appeal which had not been presented or decided by the trial court. Here the issue now presented is identical to the question considered and decided by trial court. The Chance case is not analogous since it was a jury-tried case where one issue (involving injection of contributory negligence in an instruction) presented on appeal had not been presented in the motion for new trial, which was filed and considered in the trial court; nor was this issue briefed in the Appellate court but only raised in argument. In both Mueller and...