Walbath v. Crary, No. 13629.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtEllison
Citation222 S.W. 895
PartiesWALHATH v. CRARY.
Docket NumberNo. 13629.
Decision Date14 June 1920
222 S.W. 895
WALHATH
v.
CRARY.
No. 13629.
Kansas City Court of Appeals. Missouri.
June 14, 1920.

Error to Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by W. H. Walrath against Beach Crary. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Harry Howard, of Kansas City, for plaintiff in error.

E. A. Scholer, of Kansas City, for defendant in error.

ELLISON, P. J.


This action was instituted to recover damages for malicious prosecution of a civil suit against the plaintiff. The judgment in the trial court was for the plaintiff.

Plaintiff owned real property in Kansas City, Mo., and defendant owned real property in the state of Texas. They exchanged properties and afterwards defendant instituted an action in the state of Texas against plaintiff for rescission, and it is for the institution of that suit that plaintiff has brought this action. Plaintiff was put to the expense of employing counsel and attending court in Texas at the time set for trial, when defendant dismissed the case and plaintiff was discharged. Defendant did not appear or offer defense to this suit, and judgment by default was rendered against him. The trial court heard evidence as to the amount plaintiff had been damaged and rendered final judgment therefor. No appeal was taken, but defendant sued out a writ of error on the record, his complaint being that plaintiff did not allege facts in his petition sufficient to sustain a cause of action, and that is the sole question in the case.

The petition is half made up of a mixture of statement of evidence and argument, going so far in one place as to allege what defendant admitted as to his bad faith in a certain deposition. That part of it purporting to state his case is as follows:

"Plaintiff, for his cause of action against above-named defendant, alleges that at all times hereinafter mentioned defendant was engaged in the business of buying, selling, and trading real estate in Missouri and many other states, and followed said occupation as a business or profession. Plaintiff alleges that some time in February, 1917, he was the owner of a certain 21-apartment flat building located in Kansas City, Mo., and that about said date defendant and plaintiff entered into negotiations for the exchange of properties, defendant offering to trade plaintiff for said flat building 980 acres of land in the Texas panhandle country in Hale county, Tex., such exchange being subject to mutual inspection and investigation; and plaintiff alleges that thereafter defendant inspected the flat, examining its condition, rooms, questioned its tenants, and that thereafter, some time in May, 1917, plaintiff and defendant entered into a contract for the exchange of the properties as hereinbefore mentioned, said transfer to be consummated in August, 1917. "Plaintiff alleges that thereafter, in December, 1917, defendant, Crary, instituted suit in Hale county, Tex., for the rescission of said exchange of properties, cancellation of notes, and other relief, on the ground of misrepresentation alleged to have been made by this plaintiff and his agent as to the number of rooms and toilet improvement in said apartments, as to the rentals and insurance and...

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7 practice notes
  • In re Rust v. Missouri Dental Board, No. 37048.
    • United States
    • United States State Supreme Court of Missouri
    • August 22, 1941
    ...the commission of an offense and the court was without jurisdiction to revoke appellant's right to practice dentistry. Walrath v. Crary, 222 S.W. 895; Kalman v. Walsh, 355 Ill. 341, 129 N.E. 315; Dyment v. Board of Medical Examiners, 207 Pac. 409. (d) The jurisdiction of the circuit court i......
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.W. (2d) 697; Ludwig v. Scott, 334 Mo. 207, 65 S.W. (2d) 1034; Christal v. Craig, 8......
  • Wilhoit v. City of Springfield, No. 6370.
    • United States
    • Court of Appeal of Missouri (US)
    • May 3, 1943
    ...Gibson v. Chicago Great Western Ry. Co., 225 Mo. 473, 125 S.W. 453; Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92; Walrath v. Crary, 222 S.W. 895; 49 C.J. 43; Totman v. Christopher, 237 S.W. 822. [b] A municipal ordinance cannot be attacked by setting forth the ground thereof as a mere......
  • State ex rel. School Dist. No. 24 v. Neaf, No. 36496.
    • United States
    • United States State Supreme Court of Missouri
    • July 5, 1939
    ...relators, to strike out parts of respondents' return. R.S. 1929, secs. 783, 785; Shohoney v. Railroad Co., 231 Mo. 131; Walrath v. Crary, 222 S.W. 895; Pier v. Heinrichoffen, 52 Mo. 333. According to the established rule, respondents' general denial as set forth in their return is a nullity......
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7 cases
  • In re Rust v. Missouri Dental Board, No. 37048.
    • United States
    • United States State Supreme Court of Missouri
    • August 22, 1941
    ...the commission of an offense and the court was without jurisdiction to revoke appellant's right to practice dentistry. Walrath v. Crary, 222 S.W. 895; Kalman v. Walsh, 355 Ill. 341, 129 N.E. 315; Dyment v. Board of Medical Examiners, 207 Pac. 409. (d) The jurisdiction of the circuit court i......
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.W. (2d) 697; Ludwig v. Scott, 334 Mo. 207, 65 S.W. (2d) 1034; Christal v. Craig, 8......
  • Wilhoit v. City of Springfield, No. 6370.
    • United States
    • Court of Appeal of Missouri (US)
    • May 3, 1943
    ...Gibson v. Chicago Great Western Ry. Co., 225 Mo. 473, 125 S.W. 453; Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92; Walrath v. Crary, 222 S.W. 895; 49 C.J. 43; Totman v. Christopher, 237 S.W. 822. [b] A municipal ordinance cannot be attacked by setting forth the ground thereof as a mere......
  • State ex rel. School Dist. No. 24 v. Neaf, No. 36496.
    • United States
    • United States State Supreme Court of Missouri
    • July 5, 1939
    ...relators, to strike out parts of respondents' return. R.S. 1929, secs. 783, 785; Shohoney v. Railroad Co., 231 Mo. 131; Walrath v. Crary, 222 S.W. 895; Pier v. Heinrichoffen, 52 Mo. 333. According to the established rule, respondents' general denial as set forth in their return is a nullity......
  • Request a trial to view additional results

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