Warner v. Michel

• Decision Date: 12 November 1912
• Citation: 167 Mo. App. 713,151 S.W. 159
• Parties: WARNER et al. v. MICHEL et al.
• Court: Missouri Court of Appeals

151 S.W. 159

167 Mo. App. 713

WARNER et al. v. MICHEL et al.

St. Louis Court of Appeals. Missouri.

November 12, 1912.

1. APPEAL AND ERROR (§ 907) — REGULARITY OF ACTION OF TRIAL COURT — PRESUMPTIONS.

Where the abstract of record is in the short form, and contains a copy of the judgment appealed from and the order allowing the appeal, but contains no recitals with reference to an objection made by counsel, the reviewing court will presume in favor of the regularity of the trial court's action and affirm the judgment.

2. JUDGMENT (§ 585) — CONCLUSIVENESS — QUESTIONS CONCLUDED.

A judgment adjudging that a party is not entitled to a release of a deed of trust securing a debt bars an action for the statutory penalty for a refusal to release the deed of trust.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Franceska Warner and another against Frank H. Michel and others, partners under the firm name of Hammell & Karleskind. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

Louis Mayer and L. P. Crigler, both of St. Louis, for appellants. J. L. Hornsby, of St. Louis, for respondents.

REYNOLDS, P. J.

This is the second appeal in this case. It was here under the same title and will be found reported 143 Mo. App. 133, 122 S. W. 338. The petition contained two counts, the first asking for the cancellation of the record of a certain deed of trust, it being averred that the debt secured by it had been paid off in full and that plaintiffs had tendered the legal fee to entitle them to have satisfaction of the deed of trust; the second count averring the payment in full of the debt secured by the deed of trust and tender of the legal fee for the release thereof on the margin of the record, along with the demand that the release be indorsed, and averring the refusal of defendants to release the deed of trust of record, demands the statutory penalty of 10 per cent. of the debt as damages for failure so to do.

At the former trial the cause was tried before the court as to the first count and before the jury as to the second, the testimony as to both counts being heard together. At the conclusion of that trial the court found for defendants on the first count, but the jury before whom the second count for the statutory penalty was tried, returned a verdict in favor of plaintiffs. Plaintiffs filed a motion for new trial as to the first count, and defendants filed one as to the second count. The court sustained the motion of defendants...